Merrill v. Woodbury

The plaintiff had the right by statute to bring the suit in her own name as administratrix, though never having been appointed. G. L., c. 198, s. 10. The administrator subsequently appointed, refusing to come in and indorse the writ and prosecute the suit, though two terms of court have elapsed since the action was brought, it does not appear on what ground the *Page 505 motion to dismiss was denied. The statute provides that actions brought, as this was, shall not be abated if the administrator appointed shall appear and indorse the writ and prosecute the suit as plaintiff at the first or second term; or, in other words, that the action shall be abated if the administrator does not appear and prosecute at the first or second term. It is not a matter of discretion whether the suit shall abate or not. Without the statute the suit could not have been brought as it was; and as no person, legally representing the deceased, appeared within the time fixed by the statute, and the administrator declines to appear, there is no plaintiff in court, and the action cannot be maintained. We are not aware of any case where a party has been kept in court as defendant when there is no plaintiff. Tappan v. Tappan, 30 N.H. 50. It is immaterial on whose petition Weeks was appointed, or whether or not he is acting in good faith and for the best interest of all parties. If he is acting in bad faith, or conniving with the defendant to the detriment of the estate, as is charged by the plaintiff, he may be held to make good the loss on the settlement of his account in probate court. There being no plaintiff in court, and the administrator declining to appear at the second term, the motion should have been granted. Exception sustained. CARPENTER, J., did not sit: the others concurred. The foregoing opinion having been given at the June term, 1881, the plaintiff, at the next trial term, moved for leave to amend the writ by inserting the name of the administrator as plaintiff, on indemnifying him against costs. The motion was granted, and the defendant excepted.