Wells v. Scott's

Bullard, J., delivered the opinion of the court. The appellee moves to dismiss the appeal, on the ground that her husband is not made a party, nor cited as appellee. It is answered, that she is before the court merely as executrix, and may well appear without the assistance of her husband. The 118th article of the Code of Practice provides, that in all suits for a cause of action, relative to the wife’s separate interest, both husband and wife must be parties. In this case the husband was a party below, and the judgment is in favor of the executrix, for a balance on her account of administration. The balance thus decreed to her, certainly does not belong to the estate, and consequently not to the executrix in that capacity, but personally. The judgment became her property, and when the appellants seek to avoid it, her husband must be joined with her. It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs.