Rhodes v. Stout

Beck, J. Administrator: parties. — It is insisted by defendant’s counsel, that the suit cannot be maintained by plaintiffs; that Sarah A. Rhodes, upon the death of Mahlon King-man^ i3ecame entitled to a distributive share of his estate, which, at her death, vested in her adminis 315 trator, who alone can recover the same for the use of her estate, to he expended in the payment of the debts thereof, and in case there should be no debts, to be dis-. tributed to her heirs. This view is undoubtedly correct. Without determining that the plaintiffs could, or could not, maintain the action, in case no administration has been granted upon the estate of their mother, or the time for granting letters of administration thereon, limited by the statute, has expired, or no debts against her estate in fact exists, or in case of the existence of other like facts, none of whidh are shown in the petition, we are clearly of the opinion that the plaintiffs, upon the case made by the petition, are not the proper parties -to prosecute this suit in that capacity. The other point made by the demurrer, namely, that the claim not having been filed in the County Court, nor suit thereon brought within eighteen months, is barred by section 2405 of the Revision, we will not undertake to rule. The cause must be reversed upon the ground above stated; an amendment of the petition may present this point in a different aspect, even if it will not obviate the necessity of its decision in this case. Reversed.