Patchen & Patchen, adm'rs, &c. vs. Wilson, 4 Hill & Den. 57

By the Court, Bronson, J. The cases on which the defendant relies were actions of replevin and trover to recover goods and chattels which belonged to the testator at the time of his death, and which were afterwards tortiously taken or wrongfully converted. As such property vests, on the death of the testator, in the personal representative, the wrong was done to him, and he could sue in his own name without calling himself executor. But it is not so where the executor sues on a contract made with the testator.

There he must necessarily sue in his representative character; and this is so, although the time for payment or performance had not arrived when the testator died. In the case of a chattel, the representative may sue in his own name, and then use the letters testamentary as a part of his chain of title. But except upon a note payable to bearer, the representative cannot sue on a contract made with his testator without calling himself executor. Here the administrators necessarily prosecuted the suit in the right of the intestate, and although they have failed, they are not liable to pay costs. Motion denied.

See Reynolds, adm’r &c. v. Collins, ex’r & (3 Hill, 441.)