104 Iowa 707 | Iowa | 1898
Lloyd P. Connor, -while in the employ of defendant company, was killed in its yards at Brooklyn, Iowa, May 11,1893. At the time of his death he was unmarried, and he left, surviving, his father and mother, who were his sole heir® at law. On September 20, 1893, defendant made a settlement with the father and mother of said Connor, and took from them the following instrument:
“For the consideration of $250.00, received of the Chicago, Bock Island & Pacific Railway Company, I hereby release and discharge said company from all claims and demands against it, and especially from all liability for loss or damages to us, or either of us-, or to the estate of the said Lloyd Connor, deceased, of which estate we are' the sole distributees; the ®aid Lloyd Connor having died from injuries received at Brooklyn, Iowa, having been run over by a oar while in the employ of said railway company as a switchman. And the said Lloyd Connor being our minor son, and having died intestate, unmarried, and without issue, we, his surviving parents, for the consideration above named, do hereby release and discharge said railway company from all liability to us, or to the estate of said Lloyd Connor, whether on account of damage® by reason of his death, for money due him, or for or on any other account whatsoever. Said accident having occurred on or about the eleventh day of May, A. IX 1893. Received! payment September 20th, 1893. Mrs. J. E. Connor. John Connor.
*709 “The above was read to and signed by the said- Mrs. J. E. Connor and John Connor in our presence, at Brooklyn, Iowa, on the twentieth day of September, 1893. J. H. Tucker. Lewis Clark.”
The fairness or good faith of this settlement is not questioned, nor is it claimed that Lloyd Connor had any creditors. On August 1, 1894, plaintiff procured himself to be appointed administrator of the estate of said' Connor, and on the fourteenth of that month he-began this action. The sole question for determination is whether the settlement with the heirs precludes a recovery by the administrator; or, putting it in .another way, is administration of the estate of an intestate a necessity in this state, or is it only a matter of legal convenience? Counsel for appellant insist that the heirs had no title to or ownership of the claim against the defendant, and that, therefore, the settlement with them was of no validity, and their receipt cannot bar the administrator in this action.
II. By section 2526, Code 1873, it is provided: “When a wrongful act produces death, the damages shall be disposed of as personal property, belonging to the estate of the deceased, except that if the deceased leaves a husband, wife, child or parent, it shall not be liable for the payment of debts.” .Under our law the right to a distributive share of personalty in the estate of an intestate vests instanter in the heir upon the death of the owner, and not from the time of distribution made. Distribution gives to the distributee no new title, but only ascertains the property to which title attaches. Moore v. Gordon, 24 Iowa, 158. 2 Williams, Personal Property, 277, gives this as the common rule. It has been held in this, state that heirs cannot maintain an action upon notes due the estate during the period allotted for administration. The ground upon which this holding is based is, not that they have no title, but that the extent-of their interest ha® not
Section 2367 of the Code of 1873 provides that original administration cannot be had after a lapse of five years from the death of the intestate. This does not mean that letters must be taken out within that time, whether desired or not, but is intended as a bar to creditors. If, in the case of an intestate estate, there are no debts, and the property is such as can be divided, and the heirs agree upon a division, we know of nothing, either in law or reason, to prevent them from settling the estate without the intervention of an administrator. In the case at bar, the only property
The administrator is a mere trustee for the creditors and the heirs. If he received the money from defendant, he could but do- with it what has- already been done. It would seem both useless and expensive