Overview
Case summary
This case involves a bill of revivor after the abatement of a suit due to the death of the original plaintiff, Richard S. Newcombe. Newcombe had filed suit as administrator of both Isaac Bernstein and Louisa Bernstein, seeking an accounting of partnership profits from Louisiana State Lottery shares. Isaac Bernstein died in 1885, naming his wife Louisa as sole executrix and legatee, but she died without qualifying as executrix. Newcombe was appointed administrator of both estates. After Newcombe's death in 1891, a bill of revivor was filed by Sharpe and Simmons as administrators de bonis non of Louisa Bernstein only. Defendants demurred, arguing improper parties. The court held that since the original bill was filed by Newcombe as administrator of both Isaac and Louisa, and title to the lottery shares remained with Isaac's estate (not having vested in Louisa due to her failure to qualify), the proper party to revive must include the representative of Isaac Bernstein's estate. The court sustained the demurrer on these grounds, granting leave to amend.
Abstract
Original suit for partnership accounting filed by administrator of both decedents' estates abated upon his death, prompting a bill of revivor by administrators de bonis non of one estate only. Defendants demurred, arguing improper parties since title to the asset remained with the first decedent's estate due to the second's failure to qualify as executrix. Court sustained demurrer on party grounds, granting leave to amend by adding the proper representative, while overruling other grounds.
Opinion of the court
opinionCOXE, District Judge
- Revivor of a suit by representatives of a deceased party is a matter of right and a mere continuance of the original suit
- The sole questions on a bill to revive are the competency of the parties and correctness of the bill's frame
- Where a bill is filed by an administrator of a deceased person, the party to revive must be the representative of that deceased person, not the representative of the original plaintiff unless they also represent the deceased
- Title to Isaac Bernstein's personal property (lottery shares) vested in his administrator and never passed to Louisa Bernstein's estate because she never qualified as executrix
- Therefore, the representative of Isaac Bernstein's estate must be a party to the bill of revivor
Jurisdiction
challenged- Defendant Morris filed a plea disputing jurisdiction for lack of diverse citizenship
Procedural posture
- Demurrer to bill of revivor on grounds of improper parties
Legal categories
Case record
Issues & holdings
Holdings of the court
Timeline
Isaac Bernstein dies, leaving will naming wife Louisa Bernstein as sole executrix and legatee
Title to personal property, including lottery shares, depends on administration of Isaac's estate
Louisa Bernstein dies without having qualified as executrix of Isaac's will
Title to Isaac's personal property did not vest in Louisa; remained with Isaac's estate
Richard S. Newcombe appointed administrator cum testamento annexo of Louisa Bernstein's estate
Outcome: Newcombe becomes representative of Louisa's estate
If title vested in Louisa's estate, Newcombe would hold it in this capacity
Richard S. Newcombe appointed administrator of Isaac Bernstein's estate
Outcome: Newcombe becomes representative of Isaac's estate
Newcombe believed title to lottery shares remained with Isaac's estate, not Louisa's
Original bill filed by Richard S. Newcombe as administrator of both Isaac and Louisa Bernstein, seeking accounting of partnership profits from Louisiana State Lottery shares
Outcome: Suit commenced
Establishes legal theory that title to shares was with Isaac's estate, represented by Newcombe
Richard S. Newcombe dies, abating the suit
Outcome: Suit abated
Requires bill of revivor to continue action
Defendant John A. Morris dies intestate, leaving heirs including Alfred H. Morris appointed as administrator
Defendant's estate must be represented in revived suit
Bill of revivor filed by Stephen G. Sharpe and Bella Simmons as administrators de bonis non of Louisa Bernstein only
Outcome: Revivor attempted
Complainants seek to revive suit only as representatives of Louisa's estate, not Isaac's
Court sustains first two grounds of demurrer, overrules others, grants leave to amend bill of revivor within 20 days to include representative of Isaac Bernstein's estate
Outcome: Demurrer partially sustained
Holds that representative of Isaac Bernstein's estate must be party to proper revivor
Facts & evidence
Key facts
8 facts- Isaac Bernstein died March 18, 1885, leaving will naming wife Louisa Bernstein as sole executrix and legatee
- Louisa Bernstein never qualified as executrix and died September 16, 1885
- Richard S. Newcombe appointed administrator cum testamento annexo of Louisa's estate December 24, 1885
- Newcombe appointed administrator of Isaac's estate January 14, 1886
- Original bill filed December 18, 1888 by Newcombe as administrator of both Isaac and Louisa Bernstein, seeking accounting of partnership profits from Louisiana State Lottery shares
- Newcombe died summer 1891, abating the suit
- Bill of revivor filed February 25, 1896 by Sharpe and Simmons as administrators de bonis non of Louisa Bernstein only
- Defendant John A. Morris died May 26, 1895, leaving heirs including Alfred H. Morris as administrator
Disputed questions
- Whether title to lottery shares vested in Louisa Bernstein's estate or remained in Isaac Bernstein's estate
Procedural history
7 steps- Original bill filed December 18, 1888
- Defendant Morris filed plea disputing jurisdiction
- Defendant Murray filed answer
- Proofs taken against Murray and on Morris's plea
- Newcombe died summer 1891, abating suit
- Bill of revivor filed February 25, 1896
- Demurrer filed to bill of revivor
Evidence in the record
- Proofs taken against defendant Murray and on plea filed by Morris
- Will of Isaac Bernstein
- Appointment documents for administrators
Objects of relevance
Policy considerations
- Revivor as a matter of right to ensure continuity of justice despite party death
Authorities
Cited authorities (9)
Statutes
- New York Code section 2666 (cited by complainants but deemed inapplicable)
Standards & doctrines
- Revivor as continuance doctrine
- Party competency rule in chancery practice
Legal principles applied
- Revivor is a matter of right and mere continuance of original suit
- On bill to revive, inquiry limited to competency of parties and correctness of bill's frame
Notable quotes
““Nothing can be more clear, than, that upon a bill to revive, the sole questions before the court are the competency of the parties, and the correctness of the frame of the bill to revive.””Judge Story (quoted by majority) — Quoting Judge Story in Bettes v. Dana to explain the limited scope of inquiry on a bill of revivorEstablishes that revivor focuses only on proper parties and procedural correctness, not merits of original suit
““Nothing could be brought into the litigation by the bill of revivor besides the mere question whether the brother, brought in on the bill of revivor, was the executor of the will of Stover, and his legatee and devisee.””Court in Fretz v. Stover (quoted by majority) — Quoting Fretz v. Stover to reinforce that revivor is confined to party competency issuesEmphasizes narrow purpose of revivor proceedings