[1] Whether a lawsuit seeking performance of a testamentary gift obligation against several executors is an essential co-litigants with all the executors as defendant (affirmative)

[2] In a case where only one of several executors files a lawsuit seeking the performance of testamentary gift obligation with the defendant, the case holding that where all the inheritor becomes the executor of the will, and the executor of the will seeks the performance of testamentary gift obligation under the proviso of Article 1087 (1) of the Civil Act is an indispensable co-litigation to be the defendant, unless there is any designation of the executor or any entrustment by a third person with the designation of the executor

[1] Where there exist two or more executors including the cases in which an executor becomes an executor, barring special circumstances, such as the testator who designated or entrusted the executor, or the court which appointed the executor, the right to manage and dispose of the subject matter of testamentary gift belongs to several executors who jointly perform the joint duties of execution of a will according to the principal place of will, and the exercise of the right to dispose and dispose of the testamentary gift shall be decided by the majority, and where there exist several executors, it is reasonable to view the executor as a lawsuit seeking performance of the testamentary gift obligation to all the executors as an indispensable co-litigation with the defendant.

[2] In a case where only one of several executors filed a lawsuit seeking the performance of testamentary gift obligation with the defendant, the case holding that where all of the inheritors are the executor of the will, unless there is designation of the executor of the will or designation of a third party, and the executor of the will who is a parent of the family under the proviso of Article 1087 (1) of the Civil Act, seeking the performance of testamentary gift obligation against all of the inheritors, the executor of the will, as

[1] Articles 681, 1087(1), 1093, 1095, 1096(1), 1101, 1102, and 1103(2) of the Civil Act / [2] Articles 681, 1087(1), 1093, 1095, 1096(1), 1101, 1102, and 1103(2) of the Civil Act

Plaintiff (Attorney Jeon Dae-Gyeong et al., Counsel for the plaintiff-appellant)

The deceased Nonparty 1’s executor of the will (Law Firm Jeong, Attorney Na-young, Counsel for the plaintiff-appellant)

Busan High Court Decision 2007Na21535 decided January 6, 2009

The conjunctive claim part of the judgment below is reversed, and this part of the lawsuit is dismissed. All costs of the lawsuit are borne by the plaintiff.

We examine the grounds of appeal.

An executor has the duty to manage the property which is the object of a testamentary gift or to perform any other act necessary for carrying out a will (Article 1101 of the Civil Act), and has the duty to manage affairs relating to the execution of a will with the care of a good manager in accordance with the principal place of the will (Articles 1103(2) and 681 of the Civil Act). Where there exist several executors, the execution of their duties shall be decided by the majority, and where there exist several executors, they shall be done by each executor, respectively (Article 1102 of the Civil Act). Meanwhile, an executor may designate an executor as a will or entrust such designation to a third person (Article 1093 of the Civil Act). If there is no such designation or designation entrustment, or if there is no such designation or designation entrustment, or if there is no such designation or designation made by an executor, the court has to appoint an executor as a joint executor upon the application of an interested person, in view of the above provisions, whether an executor of a will is entitled to take partial charge of a testament, etc.

According to the reasoning of the judgment of the court below, the deceased non-party 1's heir has the following non-party 2, 3, 4, and 5, and the deceased did not designate the executor by will or entrust the designation of the executor to a third party. Thus, all the deceased's heir including the plaintiff and the defendant are the executor of the deceased's will. Meanwhile, the conjunctive claim part of the lawsuit in this case is seeking the performance of the testamentary gift duty against the deceased's executor who becomes the executor of the family of this case under the proviso of Article 1087 (1) of the Civil Act. Thus, all the inheritors except the plaintiff are indispensable co-litigations that should be the defendant.

Therefore, the part of the conjunctive claim in the lawsuit in this case, which was filed by several executors, is inappropriate, and thus, the court below should have dismissed the above claim as added at the court below. Nevertheless, the court below erred by misapprehending the legal principles as to indispensable co-litigation, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the part of the judgment below’s conjunctive claim is reversed. Since this part is sufficient for the Supreme Court to directly judge, this part of the lawsuit is dismissed, and the total cost of the lawsuit is borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)