In re Estate of Page

By the Court, McKinstry, J.: Under the provisions of the sixth chapter of the Probate Act of 1851, no recovery can properly be had in an action against executors, unless the claim of the plaintiff has been duly presented to the executors and the Probate Judge. This is equally true, whether the action was commenced against the executors or was originally brought against the testator, and was pending at the time of his decease.

A third class of cases was provided for by Sec. 202 of the Practice Act, those in which a party should die after verdict and before judgment. In such cases the court was directed to render a judgment on the verdict, and the judgment was but the formal entry of the result of the litigation —the demand of the successful party having been liquidated and established by the verdict. The statutes did not contemplate any substitution of executors or administrators prior to the entry of the judgment.

The proper practice, on suggestion of the death of a party after verdict and before judgment, was to direct the entry of the judgment provided for in Sec. 202 of the Practice Act; then, to suspend all further proceedings in the cause until executors or administrators should be qualified and substituted as parties. It is probable that the time to move for a new trial would only commence to run after such substitution.

In the present case the action was not “pending” at the time of the death of the testator, within the meaning of the 138th Section of the Probate Act. The judgment should have [43]been against the testator by name, and its effect was the same as if it had been ordered as of a date anterior to his decease, except that it could not be made to charge the estate with a lien which should have priority, and was payable only in due course of administration. The statutes did not require that such a judgment should be presented to the executors for allowance or rejection. By its terms it was made payable in due course of administration, and nothing would be gained by requiring its presentation as a claim. The testator in his lifetime had ample opportunity to make every defense to the original claim which the executors could make, and no defense to an action on the judgment could have arisen after the rendition of the judgment.

We do not think the judgment of the Fourth District Court, as modified by this Court, is void. It is not a matter of practical consequence that a judgment payable only in due course of administration was by mistake entered against the representatives of his estate, instead of against the testator by name. The error of the District Court with respect to the form should have been made a point on appeal from the judgment.