Humphreys v. Keith

The opinion of the court was delivered by Brewer, J.: Plaintiff brought suit on a promissory note executed by defendant, and payable to Seth Taylor or order. After the execution of the note Seth Taylor died, leaving as his heirs the plaintiff, his widow, and three children by a former wife. Plaintiff was appointed administratrix, and settled the estate, paying all the debts except one due and allowed to herself. She made a final settlement which was approved. In her statement for final settlement she reported this note uncollectible on account of the then insolvency of defendant. The probate court, after finding that all the claims but hers had been paid, and approving the final settlement, made this order: “ The court therefore orders that the note against Truman D. Keith be retained in the hands of said administratrix to be collected if possible and applied upon her said'account, and the surplus, if any, reported to this court.” The balance due plaintiff from the estate on her allowance was about double the amount due on the note. No question was made as to the validity of the note, and the only point to be decided was as to plaintiff’s right to recover. The district court decided against her, and she here alleges error. If the order quoted was one within the power of the probate [111] ■court to make, then the full title to the note was transferred to her; she was entitled to all the proceeds, and was the real and only party in interest, and the only party authorized to .sue. If the order was ultra vires, and of no force, then, the. final settlement of the estate having been approved, and the debts, except hers, all paid, she has as one of the distributees, an interest in the note, and though that be only a half-interest, still it is enough to enable her to maintain this action. Dean v. Hewitt, 5 Wend., 257. If there be a defect of parties, in that all the distributees are not joined as plaintiffs, it is waived because not raised by demurrer or answer. Code, § 91. The judgment of the district court is reversed. All the Justices concurring.