Nash v. Hogan

Bird, V. C. Mary Nash holds a promissory note which is drawn payable to the order of her father. It was given to her father in his lifetime by the defendant, Hogan. Her father made his will, [109] and gave his property to his wife in such manner that this note-devolved on her. During her widowhood the mother became indebted to her daughter, the complainant, and in payment thereof gave her this note. Although the father’s will Avas proved, letters testamentary were nevér issued and no administration of his estate was ever had; and, consequently, the note passed to the widow and mother without endorsement. Thus holding the note Avithout endorsement, it being made payable to the order of the payee, the complainant insists that her only remedy is in this court. The demurrant thinks that there is a safe remedy at law. I agree with the demurrant. Suit can be brought against the-maker in the name of the original payee in such case, or if he-be dead, in the name of his executors or administrators to the use of the real owner. If, as in this case, there be no executor or administrator, it must be remembered that the courts are open, for the appointment of one, for every proper purpose. [110] The authorities all sustain this view. Fine v. High Bridge Church, 15 Vr. 148; Pars. Bills 45, 46, note b; Matlack v. Hendrickson, 1 Gr. 263; Chitty Bills (Perkins’s ed.) 259, note 3; Freeman v. Perry, 22 Conn. 617; White v. Phelps, 14 Minn. 27 (100 Am. Dec. 193). The demurrer is sustained, with costs.