15 Iowa 192 | Iowa | 1863
It is not pretended, of course, that, at common law, tbe plaintiff could maintain tbe action. Indeed, the proceeding is so anomalous that we have been most reluctant to sustain it We know that at common
But the statute, as we read it, recognizes the remedy in this form, and there being' no suggestion of its invalidity, we, of course, must follow the enactment. By § 3954 it is provided, that “the legal representative of a person who might have been plaintiff if alive may bring this suit after his death.” The right of the heir to bring the action, without the aid of the statute, is unquestionable. This section was intended, as we suppose, to confer a power on a party not before possessing it. Who is this “legal representative,” then? We understand it to mean the executor or administrator. This is certainly the meaning according to approved usage; and if treated as a phrase which has acquired a peculiar and appropriate meaning in law, the proposition is equally clear. Rev., ch. 2, § 29; 2 Bouv. L. D., Tit. Representative.
When it is held, in Jameson v. Smith's Ex., 4 Bibb, 307, that a suit for land cannot be revived in the name of an executor, although the will may give him the right to sell and convey land, and in Wright v. Williams, 5 Cow., 501, that the executor cannot distrain for rent which accrues after the testator’s death, and that such rent goes to the heirs, there is no more than a recognition of the rule of the common law. In those States where there is no. such statute as in ours, of course this action would have to be brought by the heir. And yet we may be permitted to say that the statute, though anomalous, is convenient in its operation,
Affirmed.
