Suit v. Crawford

JUDGE PAYNTER delivebed the opinion oe the cotjet: This action was brought by the widow and children of Leonard Pyles on a promissory note which it is claimed was an asset of the estate of the decedent. Leonard Pyles died in 1876 intestate. An administrator of the estate was duly appointed. It is alleged he settled his accounts as such with the county court and was discharged as administrator and from all liability on the note in suit, and that he thereupon turned the note over to the plaintiffs. The court sustained a demurrer to and dismissed the petition upon the ground that the action could only be maintained by the personal representative. We recognize the rule to be that heirs and devisees can not in their own names prosecute suits to recover the unadministered estate of the decedent, but that such actions can only be maintained by the personal representative, except in cases where the personal representative- refuses to administer upon the estate sued for or to prosecute suits for its recovery, or in a case like Bellamy’s adm’r v. Bellamy, 3 Bush, 109. The intestate died nineteen years before this action was brought. His personal representative had settled his accounts as such and been discharged. The presumption is that all the debts of the decedent have been paid. At any rate none could have existed when the suit was brought, as the lapse of time had barred [357] a recovery on any unsatisfied claim that may have existed. It follows that no one bad any interest in tbe note except tbe beirs at law. Tbe personal representative bad relinquished any right be bad in it by set-, tling bis accounts as administrator and turning tbe note over to tbe plaintiff. We are of tbe opinion that it is an administered asset. Tbe proceeds of tbe note are not liable to pay tbe debts of tbe intestate, neither has tbe personal representative any interest therein for reimbursement or protection, as be surrendered tbe note to its real owners. Under such circumstances it seems to us to be unreasonable to require that an administrator de bonis non be appointed, and allow him alone to maintain tbe action, as it would put tbe beirs to considerable expense. Besides, as this is an administered asset, an administrator de bonis non would have no control over it. We are of tbe opinion that when tbe administrator settled bis accounts and turned tbe note over to the plaintiffs, they were vested with tbe right to collect tbe note and maintain an action on it. Tbe judgment is reversed, with directions that further proceedings conform to this opinion.