Burrell v. Kern

Mr. Chief Justice Wolverton, after stating the facts, delivered the opinion of the court. It seems to be the theory of the defendants that suit was brought by the plaintiffs in their representative capacity as executors ; hence the interposition of both the motion and demurrer. But the complaint shows, when the documents upon which it is based, the averments touching them, and its whole scope, are considered, that plaintiffs have sued in their individual, and not their representative, capacity: Beers v. Shannon, 73 N. Y. 292. The prevailing rule seems to be, with possibly some few [503] exceptions, that when the cause of suit or action, whether in contract or in tort, accrues after the death of the testator or intestate, the money, if recovered, will be assets of the estate, and the executor or administrator may sue, at his option, in either his representative or individual capacity: 8 Enc. Pl. & Prac. 658; Haskell v. Bowen, 44 Vt. 579; Grimmell v. Warner, 21 Iowa, 11; Mowry v. Adams, 14 Mass. 327; Kane v. Paul, 39 U. S. (14 Pet.) 33; Bliss, Code Pl. (3 ed.), § 53. The use of the word “executors,” in the title of the case and in the note, is a mere descriptio personse, and does not of itself operate to attach to plaintiffs a representative character (Beers v. Shannon, 73 N. Y. 292; 2 Am. & Eng. Enc. Law, [1 ed.] 334), and maybe regarded as surplusage (Miller v. Kingsbury, 128 Ill. 45, 21 N. E. 209). As the note and mortgage in question were made, executed, and delivered to the plaintiffs, and not to their testator, they were authorized, under the rule, to sue in either their representative or individual capacity ; and it is very apparent that the complaint' states a good cause of suit in one or the other capacity, and is amply sufficient as against the test of a general demurrer. Now, it was a matter of no moment to the defendants in what character plaintiffs prosecuted their suit to foreclose, as they could have set up whatever defense they may have in this suit as well as if it had been brought in any other form (Miller v. Kingsbury, 128 Ill. 45, 21 N. E. 209; and hence there was no error in overruling the motion and demurrer, or in entering the decree appealed from, which will therefore be affirmed. Affirmed .