Wellborn v. Jones

An equitable suit was brought against E. W. Butt et al. After the filing of such suit Butt died testate. Pursuant to section 5599 of the Civil Code of 1910 the plaintiff sued out a scire facias requiring the executors to be made parties defendant and to answer the said cause. The executors, Wellborn et al., filed an answer objecting to being made parties, on the grounds: first, that twelve months had not elapsed since the probate of the will and qualification of the executors of said Butt; second, because the action entirely abated on the death of E. W. Butt as to him, and did not survive…