#### JOHN J. ALSTON’S EX’ORS vs. GEORGE W. ALSTON.

In this State, only the execntors, who qualify by taking the necessary oaths, are required to join in an action for a debt or demand due to their testator. The case of Burrow v Sellars’ Ex’ors, 1 Hay. 501, 502, cited and approved!

Appeal from the Superior Court of Law of Chatham County, at Spring Term, 1843, his Honor Judge Battle presiding.

This is an action of debt brought by the plaintiffs, as executors of Joseph J. Alston, deceased, against the defendant *448for a debt dne to the testator in his lifetime. It appeared that the plaintiffs’ testator had appointed several executors, w^om plaiutUTs only qualified, the others having renounced or refused or declined to qualify. The defendant on the return of the writ, pleaded in abatement/that all the executors named in the will, and now alive, are not joined as plaintiffs in the writ. To this plea the plaintiffs demurred and the defendant joined in the demurrer. The court overruled the demurrer and gave judgment that the writ should be abated. From this judgment the plaintiffs appealed.

Manly for the plaintiffs.

No counsel for the defendant.

Daniel, J.

The English authorities certainly sustain the Judge in his opinion. They are collected in Williams on Executors 627, and shew, that if there are several executors appointed by the will, they must all join in bringing actions even though some are infants, or have not proved the will, or have refused before the ordinary. And if one sue alone, the defendant, after oyer of the probate, may plead in abatement, that the other executor mentioned therein is alive and not named. 1 Saund. 291. (note,1.) If one executor proves the will, the proof enures to the co-executors. 10 Cond. Eng. Ch. Rep. 176. 1 Myl. & Craig, 97. But, so far as we have been enabled to learn, the law and practice of this, gtate invariably have been, for those executors only w.h'o"quamy to sue. The practice may have originated in consequence of the act of 1715, (Rev. Stat. ch. s. 4,) which Enactsthat no person do presume to enter upon the administration of any deceased person’s estate, until they have obtained !a Commission of administration or letters testamentary,-signed by the Governor, under the penalty of fifty pounds.” But as long ago as 1797, this question seems to have been judicially settled in this State, in the case of *449 Burrow v Sellar’s Executors, 1 Hay. 501, 502. The fendant then pleaded in abatement, that there were other ex. editors not named in the writ. “Pjfr Curiam. The plea is bad — it should have been stated that those others qualified as executors and took upon themselves the burthen of executing the will.” We therefore are of opinion that the judgment must be reversed, the demurrer sustained, and a res-pondeas ouster awarded.

Per Curiam- Judgment accordingly.