Opinion
11-21-1927
GREEN et al. v. DOLIN.
Walter S. Keown and George B. Rothermel, both of Camden, for plaintiffs. Starr, Summerill & Lloyd, of Camden, for defendant.
Action by Dock Green and another against Michael J. Dolin for personal injuries sustained through the negligence of defendant in operating an automobile. On motion by plaintiffs to suggest the death of defendant on the record and to proceed against his executrix. Motion denied.
Walter S. Keown and George B. Rothermel, both of Camden, for plaintiffs.
Starr, Summerill & Lloyd, of Camden, for defendant.
DONGES, J. Motion is made by plaintiffs to suggest the death of defendant upon the record and to proceed against his executrix for damages for personal injuries sustained through the alleged negligence of the defendant in the operation of an automobile.
For the purposes of this motion, it is stipulated that the defendant died after the cause came at issue, following the filing of an answer by him; that, at the time the cause of action arose, and thereafter until his death, defendant was a resident of Philadelphia, in the state of Pennsylvania; that, thus domiciled in Pennsylvania, his last will and testament was proved in Philadelphia and his widow appointed executrix thereunder; no letters have been granted in this state, and, so far as appears, the executrix has taken no steps or action in this state.
Can the foreign executrix be involuntarily added as a party to this suit?
It is settled that an executor cannot be sued in a foreign state, unless power to be sued has been conferred by statute. Durie v. Blauvelt, 49 N. J. Law, 114, 6 A. 312; Rusling v. Brodhead, 55 N. J. Eq. 200, 35 A. 841; Babbitt v. Fidelity Trust Co., 70 N. J. Eq. 651, 63 A.18.
Foreign executor may, by filing an exemplified copy of his letter, bring suits in the courts of this state. P. L. 1896, p. 173; Comp. Stat. p. 2265, § 21.
My attention has not been directed to any statute, nor have I been able to discover any giving a plaintiff the right to suggest the death of defendant and involuntarily bring a foreign executor into the courts of this state to defend an action of this kind. Section 3 of the Abatement Act (Comp. Stat. p. 4) provides that the death of defendant may be suggested upon the record, the name of the executor or administrator entered upon the record, and the action proceed to judgment in any case where the executor or administrator might originally have been sued. In the instant case, the action could not have been maintained in this state against the foreign executrix of the defendant. Therefore it follows that the action cannot be prosecuted in this state against her. The motion is denied.