46

personalty is the subject of litigation." The reason that a devisee or alienee cannot bring a bill of revivor is that the heir or executor may have a right to contest the disposition of the property.47 Therefore, upon the death of an adminietrator, after decree, a bill of revivor does not lie by an administrator de bonis non. So, on the death of an administrator of a creditor, revivor does not lie by his executor, he not being the personal representative of the creditor. Neither can the committee of a complainant who has become a lunatic since the filing of the bill, or a purchaser from the complainant, or a devisee, or assignees under an insolvent debtor's act, or the assignees of a bankrupt, who supply the place of former assignees, revive, for in each of these cases the interest devolves otherwise than by the mere act of law, and there is no privity.48

§ 860. Parties to a bill of revivor.

Where a bill of revivor is filed by any one who was not a party to the original suit, either as a representative of a deceased party or otherwise, all of the surviving parties to such original suit who have any interest in the further proceedings to be had therein should be made parties to such bill, either as complainants or defendants.49 It is held that, on a bill to revive a decree, parties to the original decree, who can neither execute the decree nor be the objects of its operation, are not necessary or proper parties.50

46 Dunn v. Allen, 1 Vern. 426; Hinde, Pr. 49, 69; 2 Barbour, Ch. Pr. 43; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Ridgely v. Bond, 18 Md. 433.

47 Peer v. Cookerow, 14 N. J. Eq. 361.

48 2 Barbour, Ch. Pr. 43; Huggins v. York Buildings Co., 2 Eq. Cas. Abr. 3; Dunn v. Allen, 1 Vern. 426; Anonymous, 1 Atk. 88; Harrison v. Ridley, Comyn, 589.

49 2 Barbour, Ch. Pr. 39; Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538; Fallowes v. Williamson, 11 Ves. 306; Heires v. Day, Cary, 78; Boddy v. Kent, 1 Mer. 364.

50 Peer v. Cookerow, 14 N. J. Eq. 361, citing Cooper, Eq. Pl. 71; Mitford, Eq. Pl. 79; Story, Eq. Pl. § 376. See, for parties to bills of revivor, Newcombe v. Murray, 77 Fed. 492.

§ 861. Parties defendant to bills of revivor.

If a suit has abated by death or marriage, and is to be continued by the representatives of the original complainant, or by husband or wife, all the defendants to the original bill must be made parties to the bill of revivor. Such is also the case where the abatement is occasioned by the death or marriage of one of several complainants, and the suit is continued by the surviving complainants and the representatives of the deceased complainant, or by the husband or wife in conjunction with the other complainants. If the suit is continued either by the surviving complainants alone, or by the representatives of the deceased complainant alone, the representatives of the deceased complainant, in the one case, or the surviving complainants, in the other, must be made defendants to the bill of revivor, in conjunction with the original defendants.51 If some of the complainants entitled to file a bill of revivor refuse to join in it, they may be made parties defendant.52 Where the abatement is occasioned by the death of one of several defendants, and the suit is revived by the complainant in the original suit, only the representatives of the deceased need be brought before the court, without making the surviving defendants parties. The same principle is applicable to a supplemental bill in the nature of a bill of revivor to revive or continue a suit against the devisee or assignee of one of the original defendants.53

51 2 Barbour, Ch. Pr. 44; Fallowes v. Williamson, 11 Ves. 306. 52 Finch v. Winchelsea, 1 Eq. Cas. Abr. 2. In case of the death of one of several complainants, if the survivors are in a situation to enable them to revive and continue the suit against his representatives as defendants in a bill of revivor, it has been said not to be usual to make the other defendants parties to the bill of revivor, but the opinion has also been expressed that, in this last case, the original defendants in the suit, as well as the representative of one of the complainants, as to whom the suit has abated, should be parties to the bill of revivor filled by the surviving complainants. Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 539.

53 2 Barbour, Ch. Pr. 44, 45; Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538; Jones v. Jones, 3 Atk. 217; Clough v. Bond, 6 Jur. 49.

Where one of several joint complainants in a bill involving real estate dies without issue or will, leaving the other complainants his heirs, no revivor is necessary; but where personalty is involved, there must be a revivor to bring in the personal representative of the decedent.54 Where a bill of revivor is filed. after decree, all persons interested in carrying the decree into effect must be made parties to it; but the bill will not be demurrable for want of a party who was not before the court at the time of the abatement, although the suit may have been imperfect for want of such party.55 Where a suit is founded on a contract, the parties to that contract, or their representatives, are, in general, the only necessary parties.56 It has been said that, if a bill be exhibited against husband and wife, and the husband dies, a bill of revivor must be filed against the wife. This has been questioned, however, save where a new interest arises to the wife upon the death of her husband, in which case a supplemental bill must be filed to afford her an opportunity of putting in another defense in respect of her newly-acquired interest.58 On the death of a defendant executor, whose representatives do not become the representatives of the original testator, a bill of revivor lies against the representatives of the testator, and that without reviving against the representatives of the original defendant.59 Upon a bill for account and distribution of an estate, if one of the distributees dies pending the suit, it must be revived against his personal representatives, and not against his next of kin.60 If the subject-matter of the suit is personalty, a bill of revivor should be filed against the personal representatives, e. g., executors or administrators, of

54 Shields v. Craig's Adm'rs, 6 T. B. Mon. (Ky.) 373.

55 2 Barbour, Ch. Pr. 45; Metcalfe v. Metcalfe, 1 Keen, 74.

56 2 Barbour, Ch. Pr. 45; Humphreys v. Hollis, Jac. 73.

67 Gilbert, Forum Rom. 175.

8 2 Barbour, Ch. Pr. 45. This question is now regulated by statute many jurisdictions.

59 2 Barbour, Ch. Pr. 45, 46; Johnson v. Peck, 2 Ves. Sr. 465.

60 2 Barbour, Ch. Pr. 46; Jenkins v. Freyer, 4 Paige (N. Y.) 47.

Where

the deceased defendant; if realty, against his heirs."1 the personal representatives of a deceased party are only entitled to relief against the adverse party upon the conveyance to him of real estate which has descended to the heirs at law of the decedent, such heirs are necessary parties to a bill of revivor filed by the personal representatives. Where a mort

gagor dies pending a bill to foreclose, the cause must be revived against his heirs.63 It is said that, if a defendant who has not answered the original bill is omitted as a defendant to the bill of revivor, it will not be a ground for demurrer.64 A bill of revivor will not lie against the devisee of a defendant, but the suit must be continued against him in the same manner that it is continued by the devisee of a complainant.65

§ 862. No revivor before appearance.

Until a defendant has appeared, there is no cause in court. against him. Therefore, if a defendant dies before appearance, the suit cannot be continued against his personal representative by a bill of revivor; but a bill ought to be filed against him which will be an original bill so far as respects him, but a supplemental bill with respect to the suit.

§ 863. Frame of bill of revivor.

The bill of revivor must pursue the original bill, and, if there is any variance between them, the defendant may demur. It must state the original bill, and the several proceedings

61 Bettes v. Dana, 2 Sumn. 383, Fed. Cas. No. 1,368; Wilkinson v. Perrin, 7 T. B. Mon. (Ky.) 214; Jenkins v. Freyer, 4 Paige (N. Y.) 47; Kellar's Ex'rs v. Beelor, 5 T. B. Mon. (Ky.) 577.

62 2 Barbour, Ch. Pr. 46; Souillard v. Dias, 9 Paige (N. Y.) 393.

63 Doe d. Duval's Heirs v. McLoskey, 1 Ala. 708; Rex v. Tullock, 2 Sim. 469; Polk v. Clinton, 12 Ves. 48; Bradshaw v. Outram, 13 Ves. 235. 64 Oxburgh v. Fincham, 1 Vern. 308.

65 2 Barbour, Ch. Pr. 36; Page v. Page, Mos. 42.

66 2 Barbour, Ch. Pr. 36, 37; Crowfoot v. Mander, 9 Sim. 396. In Massachusetts, the executors of a deceased defendant may be brought in by bill of revivor, though no service had ever been made on the testator. Heard v. March, 12 Cush. (Mass.) 580.

thereon, and the abatement. In making the statement, great conciseness is desirable, but care must be taken to set out enough of the original bill and proceedings to show the complainant's title to revive; otherwise the bill of revivor will be liable to demurrer.67 It ought also to show the title of the complainant to revive the suit. It is also necessary to state so much new matter, and no more, as is requisite to show how the complainant becomes entitled to revive, and to charge that the cause ought to be revived, and to stand in the same condition with respect to the parties to the original suit as it was at the time the abatement happened.68 The bill must pray that the suit may be revived accordingly, or that the defendant may show good cause to the contrary. In some cases it may be necessary to pray that the defendant may answer the bill of revivor, and the prayer may vary according to any special circumstances of the case; as, for instance, in the case of an executor or administrator of a deceased defendant, to ascertain whether he has assets to pay the complainant's demand.70 So, where an

69

67 2 Barbour, Ch. Pr. 46; Story, Eq. Pl. § 374; Phelps v. Sproule, 4 Sim. 318. United States Equity Rule 58 makes it unnecessary to set forth any of the statements in the original suit unless the special circumstances of the case require it. "Where a man brings a bill of revivor grounded upon an original bill and proceedings, he needs to set forth no more thereof, and the best draftsmen in the age have in that case gone no further than thus: "That your orator, in or about such a time, exhibited his original bill of complaint in this honorable court, to be relieved touching certain matters and things therein contained, as by the said bill duly filed and remaining of record in this honorable court appears (and carry it no further), that the defendant on such a day put in his answer, as by the said answer remaining of record appears. That witnesses being examined, publication passed, and the cause, being at issue, came on to be heard such a day, when it was ordered and decreed' so and so. And here are taken in the words of the ordering part of the decree very shortly, and no more than what is material to the revivor." Gilbert, Forum Rom. 205.

es Story, Eq. Pl. § 374; 2 Barbour, Ch. Pr. 47; Vigers v. Audley, 9 Sim. 72; Douglass v. Sherman, 2 Paige (N. Y.) 358; Humphreys v. Ingledon, 1 P. Wms. 752; Gillett v. Robbins, 12 Wis. 354.

69 Story, Eq. Pl. § 374; 2 Barbour, Ch. Pr. 47; Mitford, Eq. Pl. 76. 70 Douglass v. Sherman, 2 Paige (N. Y.) 358; Brownlow v. Chandos, Vern. & S. 109.