Lyon v. Allison

The opinion of the Court was delivered by

Huston, J.

It sometimes happens in our practice, that a man’s name is used as a. plaintiff who has no interest in the matter trying, is not liable for costs, and cannot release the action : as in the case of the obligor of a bond, which has been informally assigned; his name is used as plaintiff for the use of him to whom it was transferred.

In this suit the executors are joined, that if there were debts of the testator which would require the assets of the estate to pay, they might make it known ; that if they should allege that the legacy was not a charge upon the land, they might have a decision on that subject ; and if that decision should be that the land is charged, and the legacy shall be levied' down from it, the executors are discharged, and have no further interest in, or control over the cause. There was, then, no error in quashing this appeal. Every circumstance and fact prove that the appeal was not bona fide by the defendant as executor, but really for the purpose of delay, to benefit his brother, against whose land the judgment was. If this appeal be sustained, what is to be'tried? The court caniiot try the interest of the devisee ; he has not appealed. The only matter that could be tried would be, whether there should be a judgment against the executors. , They and the estate are now clear. When executors sever in pleading, the court will take that plea which is best for the estate ;. clearly it is not best for the estate that this burthen should be taken from the devisee of this land and put on the general estate.

Judgment affirmed.