#### WILLIAM J. ELLISON vs. WILLIAM W. ANDREWS, *&*AL.

Where a decree is made in the County Court in favor of the plaintiffs, on a p'etition *for a*legacy, in which there are several plaintiffs, *one of*whom is the executor of a deceased legatee, and this executor dies before satisfaction or execution sued, the right to the legacy of the deceased legatee vests in the administrator *de bonis non,*hut he is not entitled to have execution until he hástnade himself a party either by *sci. fa,*or according *to*the course Of Cburts of Equity.

Wheté .several legatees or distributees obtain a decree against executors or administrators for a monied legacy, the decree is several and each is entitled to a separate execution for his share.

Shits for legacies, distributive shares, end filial portions, given in the Courts of láw by petition, are considered in the nature of proceedings in Equity, in respect to the pleadings, taking the accounts, decreeing and rehearing or reversing. And so also as to process on the decrees.

By Peakson X ‘ Where two or more joint obligees, who are not partners in trade, take a joint judgment, how far and in what manner the right of sur-vivorship is *abolished in this State, in*regard *to*such *joint judgments, by*force of the act of 1784, Rev. Stat. ch. 43, sec. 2, is an open question.

Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1851, his Honor Judge Ellis presiding.

The action is debt on the bond of the Clerk of the Superior Court of law for refusing, upon the demand of the re.lator, to issue *a. fieri facias*on a decree in a suit by petition. The pleas were, conditions performed, and conditions not broken ; and on the trial these were the facts : A petition was filed by Charles H. Mizell, Stephen Long and several other persons, against William L. Mizell, the executor of a will giving pecuniary legacies to the plaintiffs. Before a decree Stephen Long died, and Edgar A. Long, as his executor, became a party in his stead. Then such proceedings were had, that in the Superior Court of Law in August *1891849, the defendant William L. Mizell was found indebted in the.premises to the several plaintiffs in various sums, and it was decided, that he should pay to the petitioner Charles H. Mizell the sum of $213,76, and should also pay to Edgar A. Long, as executor of Stephen Long deceased, the sum of $335,23, and to the other petitioners respectively the various sums so due them severally ; and it was further added, “that the petitioners have execution therefor.” Shortly after the term of the Superior Court and before any execution issued on the decree, Edgar A. Long died intestate, and at the next term of the Court, which was in October 1849, William J. Ellison, the relator, obtained letters of administration *de bonis non, cum testamento annexe,*of the said Stephen Long deceased, and applied to the Clerk to issue an execution on the decree — whether for $335,23 only and in the name of himself or in that of Edgar A. Long, or whether in the name of all the petitioners and for all the sums decreed, is not stated. But the Clerk declined to give him the execution demanded — saying that he would not do so until he knew whether he, Ellison, was the proper person. This action was brought to the next term ; and by consent a verdict was taken for the plaintiff for nominal damages, subject to be set aside andja nonsuit entered, in case the Court should think the action would not lie.— His Honor was of that opinion, and after judgment the relator appealed.

*Rodman,*for the plaintiff.

*Biggs,*for the defendant.

Ruffin, C. J.

Upon the death of the plaintiff after judgment, the general rule is, that his representative must re_ vive the judgment by *scire facias,*in order to have execution. It seems that he may have it in the name of the original party, if he apply in time to get one of a *teste*prior to the death. But that must needs be in the case, only, in *190which the person, claiming the execution, is the representative of the original party, that is, his executor or administrator, who will be legally entitled to the money when raised. It cannot apply to the present case. For, at common law there was no privity between the executor and administrator *da bonis*non; which was created by the St. 17 Car. II, re-enacted here, Rev. Stat. Ch. 31, Sec. 118, and established to this extent : that where a judgment is had after verdict by an executor or administrator who dies, the administrator *de bonis non*may sue forth a *scire facias*on such judgment and take execution. The administrator *de bonis non,*then, hath no right in the judgment until he shall have revived it in his own name by *sci*fa; and consequently he could not require the Clerk to give him execution in any form, before he had thus made himself a party. It is plainly right that it should be so; since neither the Clerk nor the other party should be concluded as to his representative character, without the opportunity to contest it. ,

The Statute does not in terms cover our case, since there was not a judgment after verdict, but a decree upon petition-But we do not put the decision on that ground, because we suppose that, by force of another act, it is brought within the operation of the one under consideration. The act of 1787, Ch. 278, provides, that, upon a decree in equity for money, execution may issue .against the body or estate to satisfy such decree, in the same manner as executions may issue at law, and that the decree and execution shall bind the estate in the same manner as judgments and executions do at law. It may be observed by the way, that the party is entitled to the execution on such a decree for money by force of the Statute, whether the decree give it in terms or not. There is as little necessity for inserting a *fiat*for execution in a decree as ill a judgnlent, as in each the right to the process is incident to the right to the money. But since the right to an execution on a decree is thus córrela-. *191tlve to that of taking execution on a judgment, it follows that an administrator *de bonis non*must likewise in some appropriate method make.himself a party in equity in order to take execution there. That is necessarily to' be done according to the course of that Court for reviving suits cr making parties, as by bill, or by the more summary method given by the act of 1801, Rev. Stat. Ch. 32, Sec. 8 and 9. It is true, this is not the decree of the Court of Equity, technically speaking. Rut it is virtually so, within the remedial provisions for reviving suits and having executions on decrees, since suits for legacies, distributive shares, and filial portions given in the Courts of law by petition are considered in the nature of proceedings in equity, in, respect to the pleadings, taking the accounts, decreeing and rehearing or reviewing. So they must be also in respect to process on the decrees. We conclude, therefore, that an administrator *de bonis non*may enforce decrees for money in equity or on petition at law, but that to <;lo so, ho must first make himself a party!

The counsel for the plaintiff, however, contended, that 'f it be true that an administrator *de bonis non*cannot take the execution on a judgment recovered by an executor, without first suing a *scire*facias, yet it is otherwise where there is a joint judgment for the executor and .others; and that, in this last case, without suggesting the death, execution may be taken in the name of the original parties, and the clerk ought to have given the relator an execution of that kind, on which lié might have the monéy raised, to which, when raised, he would be entitled. It seems true, that on joint judgments for or against several persons, the death of one of the parties does not render a *scire facias*necessary, in order to obtain execution, according to the course of the Courts in England ; but it may be had for or against the survivors upon suggestion, or if there be no suggestion, for or against the original parties. But it is plain, the reason is, that a joint judgment survives, an I *192there could therefore be no harm in taking *execution*in either form ; since, if the execution for conformity’s sake followed the judgment, it could not be executed in respect of the dead person, and the survivors alone would be entitled or liable under it — as, for example, when there are two executors here, and one of them dies after judgment, no *scire facias*is needful to enable the other to have execution. But proceedings of the nature of those in this case are essentially different from such judgments at law. If a residue or other fund be given to divers persons to be divided equally between them, the rule of the Court •of equity is, that they must all be parties to a suit against the executor for it, in order to avoid litigation and expense. Yet they have not a joint interest in the legacy, and, in respect of unequal payments to them respectively/ unequal sums may be found in the suit to be due to the different legatees. Hence, the'decree in their favor is not iri the nature of a judgment in a joint action, but it is, that the executor pay to each one what is found due to that one; and so on, until every ore has a decree for his own share.— Therefore the decree is several, and each plaintiff proceeds for himself to enforce it as he may be advised, as if the recovery were made in a suit in which he1 was the sole plaintiff, and without any power in the other plaintiffs to interpose between him and the debtor on the decree The rights of the several parties are entirely distinct before the decree and under the decree. Then, the statute, in giving execution on decrees for money in the same manner as upon a judgment, must be understood in reference to this distinction. Therefore the other petitioners could not interfere with the particular sum decreed to the executor Edgar A-. Long, viz: $339,23, but the right to that, sum passed exclusively to the person entitled in law to succeed thereto, who in this case was the administrator *de bonis non*of the original testator. But, although he thus had-the several right to the money, he could not, as we have seen, have *193execution for it until he should entitle himself to it in his own name, by the method given in the statute, or otherwise according to the course of the Court of equity.

Pearson, J.

In England, a judgment in favor of two or more plaintiffs, upon the death of one, survives, and the survivors become entitled to the judgment absolutely, and may sue out execution and collect the whole sum for their own use, execept in case of copartners in merchandise, &c. So in this State, a judgment in favor of two or more *executors,*upon the death of one, survives to the others, by virtue of the office, which they continue to represent. For, there is *one office,*although it may be filled by several.

But when two or more joint obligees, who are not partners for the purpose of carrying on trade, commerce, &c., take a joint judgment, how far the English doctrine applies, or how far and in what manner the right of survivorship is abolished in regard to such joint judgments, by force of the act of 1784, Rev. Stat. Ch. 43, Sec. 2, which provides, that all *estates*real or personal held in joint tenancy, upon the death of one, shall not descend or go to the survivor, but shall descend or be vested in the heirs, executors, administrators &c., of the party dying, in the same manner as estates held by tenancy in common, is an open question. The Statute uses the word, *“estates,”*which is broad enough to include bonds and judgment, as well as land and other property.

My purpose is not to express an opinion on this point; for it is not prevented, but simply to “exclude a conclusion,” so as to leave it open, until it is presented and is the point in the case. This seems to me to be necessary to prevent an inference from the opinion of the Court, as delivered, that it was assumed, that in this State a *joint judgment at law*would survive as in England, about which no intimation of opinion was called for.

*194A judgment or decree for distributive shares or for legacies, which is our case, very clearly so far partakes of the nature of a decree in Equity, as to be several, and in fact there is a decree for each severally, according to the amounts to which they are respectively entitled. This is fully set out in the opinion of the Court.

Pee Cuiuam ' Judgment affirmed.