Wood v. Flynn

This order substitutes Mr. Abbott administrator with will annexed in place of plaintiffs who were sole surviving executors under the wiR of James Eowe deceased, and practically orders that the suit proceed in his name as plaintiff from the point to which it had progressed at plaintiff’s death. It seems that plaintiff and Worth were the executors of the will. The complaint alleges that at a sale óf real estate belonging to the testator, Worth bought one parcel in his own name for the benefit of the estate. If this was true, he of course held this title in trust. He died while thus holding it After his death the surviving executor sued to declare and enforce that trust. The survivor then died and Mr. Abbott was appointed administrator with the will annexed. It is conceded that the present appointment is in his behalf. It asks that he be substituted in place of the plaintiff who brought the action. This was his plain duty. The court may, and in a proper case must order the substitution and continuance upon motion under section 757 of the Code of Civil Procedure.

This section provides a summary remedy in such cases and seems *446to have been intende4 to direct the continuance of the action upon the original pleadings in the name of the substituted party, plaintiff or defendant, or as the case may be. There would seem no occasion for supplemental issues, because the whole business by this section is to be entertained on motion. It was intended that if any reason for supplemental issues existed, it should be disclosed on the motion. No such cause was shown and none is now pretended.

The order should be affirmed, with costs and disbursements.

Order affirmed, with costs and disbursements.