Boynton v. Hoyt
Court for the Trial of Impeachments and Correction of Errors
Scire facias. The writ recited that Yaniah Yeomans in July, 1841, commenced an action of ejectment against Hoyt to recover 52 acres of land in Walworth, Wayne county; that issue was joined in that action, and then, in April, 1842, Yeomans died, having first duly made and published his will, attested, &c., by which he devised his estate, real and personal, to the said Jonathan Boynton and T. G. Yeomans, the plaintiffs in the scire facias, in fee; and that the devisees proved…
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Scire facias. The writ recited that Yaniah Yeomans in July, 1841, commenced an action of ejectment against Hoyt to recover 52 acres of land in Walworth, Wayne county; that issue was joined in that action, and then, in April, 1842, Yeomans died, having first duly made and published his will, attested, &c., by which he devised his estate, real and personal, to the said Jonathan Boynton and T. G. Yeomans, the plaintiffs in the scire facias, in fee; and that the devisees proved the will. The writ then called upon Hoyt to show cause why the names of the devisees, Bo3mton and Yeomans, should not be…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The judge was right in holding that it was not necessary for the trustees and executors, Boynton and Yeomans, to show that the testator had title to the premises in question. This is not a proceeding for the purpose of trying the title to the property as between the original parties to the suit; but a proceeding to prevent an abatement of the action, by substituting in the place of the original plaintiff the persons who have succeeded to his title, whatever it may be. (2 R. S. 308, § 32; and see James v. Bennett, 10 Wend. 540.) When the substitution has been made,…
2Cases cited2 opinions
- Hawley v. JamesCourt for the Trial of Impeachments and Correction of Errors · 1836
- James v. BennettNew York Supreme Court · 1833
3Cited by35 opinions
- Estate of HinckleyCalifornia Supreme Court · 1881
- Beekman v. . BonsorNew York Court of Appeals · 1861
- Fowler v. DuhmeIndiana Supreme Court · 1896
- Knox v. . JonesNew York Court of Appeals · 1872
- In re Judicial Settlement of the Accounts of RogersAppellate Division of the Supreme Court of the State of New York · 1897
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