Buck v. Fischer

EEallett, C. J. Appellant executed a mortgage to one Brocker, who afterward died, having bequeathed all his property to Amelia, his wife, and appointed her executrix of his estate. After letters testamentary were issued to her, Amelia intermarried with O. F. A. Fischer, and thereby he became co-executor of the estate. 3 Redf. on Wills, 78. The failure of appellees to describe themselves as executrix and executor of the estate, the facts being alleged from which that conclusion may be drawn, cannot be fatal to the suit. That the suit could only be maintained by appellees as personal representatives of the estate, may be conceded (1 Story’s Eq. Pl., § 200), but the character in which they sue sufficiently appears from the facts alleged in the bill. Under chapter, 60 R. S. 455, a femme covert may sue and be sued in all matters relating to her property, person and reputation, in the same manner as if she were sole, but this suit was not brought to enforce any such right. As executrix of the estate of Brocker, the present husband was [711] responsible for her conduct under the general rule, and therefore he had a right to join with her, as plaintiff, in the suit. Whether the rule has been changed by the late statute of 1874 (10 Sess. 185), we need not determine, since that statute was passed after the suit was brought. The objection that Mr. Mills had no authority from the court to take evidence in the cause is without foundation. The general order by which he was directed to proceed as master in chancery, in all causes which had been previously referred to Mr. Luthe, was a sufficient delegation of power. We find no error in the record, and therefore affirm the decree of the district court, with costs. Affirmed.