Williamson v. Moore
The Superior Court of New York City
A bill was filed in this suit, anterior to the code, by the plaintiffs, to charge the defendant as trustee under a will. The plaintiffs claim as representatives of the cestui que trusts, and each a separate interest in the trust estate. The plaintiffs, Charles A. Williamson & wife, died in May, 1849 ; Rupert J. Cochran, in July, 1851, and Isabella M., his wife, in September, 1851. The heirs of the deceased complainants were numerous.
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A bill was filed in this suit, anterior to the code, by the plaintiffs, to charge the defendant as trustee under a will. The plaintiffs claim as representatives of the cestui que trusts, and each a separate interest in the trust estate. The plaintiffs, Charles A. Williamson & wife, died in May, 1849 ; Rupert J. Cochran, in July, 1851, and Isabella M., his wife, in September, 1851. The heirs of the deceased complainants were numerous. Several of them were infants, and resided in Europe. The defendant on notice and affidavits, stating the facts, moves for an order, requiring the surviving…
1Opinion of the CourtBosworth, J.
The causes of action stated in the complaint, do not survive to the survivors, but continue. As I read the statute, the defendant is not entitled to such an order as he seeks. 2 R. S. § 114, [sec. 108] declares that in such a case “ the suit shall abate only as to the person or persons so dying ; and the surviving parties may proceed without reviving the suit.”
§ 124, [sec. 118] ed. 185, provides that if the surviving complainant refuse or neglect to proceed against the representatives of the deceased complainant, as defendants ; the court on petition of the original defendant, may order such…
2Cases cited1 opinion
- Rogers v. PatersonNew York Court of Chancery · 1834
3Cited by1 opinion
- Lachaise v. LibbyNew York Court of Common Pleas · 1861