144 Ky. 320 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
On March 1, 1898, Jacova N. Boughner and Alice B. Holmes sold to Elizabeth Sharp by title bond a tract of 117 acres of land at $20 an acre, the price being divided into four equal payments of $578.50, payable in one, two three and, four years, and bearing interest from date, the deed to be made when the price was paid. John W. Boughner was the husband of Jacova N. Boughner. Elizabeth Sharp and her husband executed notes for the purchase money, jacova N. Boughner died on July 11, 1892, leaving surviving her, her husband and an only child, G. F. Boughner. This suit was brought on January 11, 1906, against Sharp and wife by J. W. Boughner, G. F. Boughner, Alice Holmes and W. J. Boughner on the last two notes executed to Jacova N. Boughner. W. J. Boughner is a brother of John W. Boughner, and it was alleged in the petition that Jacova N. Boughner left no debts; that no administration was ever granted
The circuit court appears to have dismissed the action upon the ground that the legal title to the notes was in the personal, representative of Jacova N. Boughner, and not in her husband or her heir at law, and that ■the promise to stop the- statute of limitation must be made to.the creditor. On the other hand, it is insisted ■for the appellants that the administrator of Jacova N. ’Boughner was made a party plaintiff to the action be■'fore it was finally submitted, and, as one of the plain- ■ tiffs, was asking judgment on the notes.
The notes were the property of Jacova N. Boughner 'at her death. They were choses in action which the husband had not reduced to possession in her lifetime, and ■ passed at her death to her personal representative. We have held in a long line of eases that the heir at law can • not sue upon a note given to the decedent, but that the right of action is alone in the personal representative. ■ (Brunk v. Means, 11 Ben. Mon., 217; Rockford v. Rockford, 12 R., 153; Loyd v. Loyd, 20 R., 347; Nelson v. Nelson, 29 R., 887; Bennett v. Bennett, 134 Ky., 444.) ■ The rule as to the rights of the surviving husband as to ■the choses in action of the wife is thus stated by Chan'CellorKent:
• “If his wife dies and he survives her before he has reduced the chose in action to possession, it does not ■strictly survive to him, but he is entitled to recover the •same to, his own use in acting as her administrator.” ■ (2 Kent’s Com., 135. To the same effect 21 Cyc, 1179; Newman v. Schwerin, 61 Fed., 865.)
We do not see how under our statutes in force at the time the husband can be distinguished from other persons taking as heir at law of' the wife. The statute provided as follows:
, “Where any person shall die intestate as to his personal estate, or any part thereof, the surplus, after payment of funeral expenses, charges of administration, and debts, shall pass and .be distributed among the same persons, and in the same proportions, to whom and in .which real estate is directed to descend, except as follows: * * * A husband shall have the whole surplus*323 of a deceased wife’s personal estate.” (Gen. St., 483.)
The husband’s only right to the property is by virtue of the statute and he takes it like any other heir under the statute. The case of Jones v. Warren, 4 Dana, 333, was decided before the adoption of the statute referred to and is expressly based on the ground that the statute of distribution then in force had been construed as not applying to the husband. The statute quoted expressly includes him and regulates his rights. In McKay v. Mayes, 16 R., 863, the administrator of the wife united in the action. In Nennelly v. White, 3 Met., 592, the executor of the husband was allowed to use a chose due the wife as a set-off in equity; but in that case it is conceded that an action at.law could not be maintained by the husband. We, therefore, conclude that John W. Boughner took no title to the notes in controversy on the death of his wife, and that his delivery of them without endorsement to W. J. Boughner invested him with no right of action. The suit was filed in the name of John W. Boughner. W. J. Boughner and G. F. Boughner, but none of them had any right of action on the notes and so an action brought by them did not stop the running of the statute of limitation.
The statute having begun to run against Jacova N. Boughner in her lifetime, there being nothing in the'statute to stop its running at her death, continued to run after her death. Section 2526, Kentucky Statutes, provides :
“If a person entitled to bring an action mentioned in the third article of this chapter, dies before the expiration of- the time limited for the commencement thereof, and the cause of action survives, the action thereon may be brought by his personal representative after the expiration of that time, if commenced within one year after his qualification. ’ ’
In L. & N. R. R. Co. v. Brantley’s Admr., 106 Ky., 849, we had before us the proper construction of this section and we there held that to> bring himself within this section, the personal representative must qualify before the cause of action is barred; that if the cause of action is barred when he qualifies, he is not entitled to one year after his qualification to bring the suit. In this case the personal representative did not qualify until more than fifteen years after the alleged new promise was made, and at the time he qualified, the cause of action was barred by limitation. He, therefore, had no
Judgment affirmed..