The plaintiff respondent brought this action properly. ( Code Civ. Proc., §§ 369, 378, 382; Daniell's Ch. Pl. and Pr. 187 et seq.; Story's Eq. Pl., § 209; Cooke v. Cooke, 2 Vern. 36; Cope v. Parry, 2 Jac. & W. 538.)
OPINION By Court:
Plaintiff brings this suit in his individual right, and also in his representative capacity, as executor. A demurrer to the complaint was filed, on behalf of defendant, and was overruled by the Court.
The question was raised by the demurrer whether the suit was properly brought by the plaintiff in a double capacity, and we think the objection to the complaint should have been sustained. The right of action was in him or in the estate, and not in both.
The judgment is that the plaintiffs I. L. Dias and I. L. Dias, as executor of the last will and testament of A. H. L. Dias, deceased, do recover, etc. We think the judgment can not be sustained.
Judgment reversed.