71 Minn. 374 | Minn. | 1898
This is the second appeal in this action. See 67 Minn. 92, 69 N. W. 638. After the decision on the former appeal, the case was again tried in the court below, and, at the close of the trial, the judge ordered a verdict for plaintiff for the amount of the note and interest. From an order denying a new trial, defendant appeals.
It appears by the evidence that in 1887 defendant’s brother, W. H. Hayward, and his father, J. E. Hayward, were associated together as partners in the lumber business, under the firm name of W. H. Hayward & Co.; that the brother had at that time but little property of his own;, that the father furnished all the capital for the business, and had besides a considerable amount of individual property; and that the brother was manager of both the partnership business and most of the father’s individual business, and had authority to draw checks on the partnership funds in the bank, and also to draw checks in his father’s name on the individual funds of the latter in the bank. At this time defendant was financially embarrassed, ánd was about to lose some of his property on chattel mortgages.
The evidence tends to prove that there had been some trouble between him and his father, and he did not want the latter to know that his property was mortgaged. So he applied to his mother for
The note being taken in the name of W. H. Hayward, he would, under section 5158, G. S. 1894, have a right to maintain an action on it, even though he had no beneficial interest in it at all. Under section 4297, G. S. 1894, a trust estate does not, on the death of the trustee, descend to his heirs or pass to his personal representatives, as it did at common law, but the execution of the trust vests in the district court, and it appoints a new trustee. But we cannot hold that this statute applies to such a case as this, where no trust appears on the face of the instrument, and it is merely a case of a promissory note being taken in the name of one party for the benefit of another. Then the administrator of the payee of the note can maintain the action whether the amount recovered will be held for the estate of W. H. Hayward, or the estate of his father, or partly for each estate. This is what was held on the former appeal.
But some additional facts have since come into the case which have been set out in plaintiff’s supplemental complaint. It is alleged in this complaint, and admitted in the answer to it, that the widow of W. H. Hayward is his sole heir and distributee. It is alleged, and appears by the evidence given on the last trial, that after his death, and before an administrator of his estate was ap
After the father’s death, his estate was administered in the probate court, and on March 1, 1897, the decree of distribution was entered, which, after assigning specified portions of the estate to different heirs and distributees, assigned all the balance of the estate to four certain distributees. On May 3, 1897, these four distributees, by an instrument under seal, released and discharged defendant from all claims which they may have had on account of this note. Plaintiff admitted on the trial that there were no debts proved, or to be proved, against the estate of W. H. Hayward, and, as his widow was his sole heir and distributee, it was competent for her to make an equitable assignment of all her interest and the interest of his estate in the property' and assets of the partnership, and the assignment which she has so made to the father is binding on the plaintiff, the administrator. See Vail v. Anderson, 61 Minn. 552, 64 N. W. 47; 1 Woerner, Adm’rs, § 201; 2 Woerner, Adm’rs, § 566; Foote v. Foote, 61 Mich. 181, 28 N. W. 90. In the case of Wiswell v. Wiswell, 35 Minn. 371, 29 N. W. 166, it did not appear that the widow who sold the horse was the sole distributee, and that there were no debts proved or to be proved against the estate. In the case at bar these things appear conclusively. The plaintiff was appointed administrator on the petition of the widow herself, more than five years and a half after she had made said settlement with the father as surviving partner. Then, if the beneficial interest in the note in suit was in the father or in the partnership firm at the time of the death of W. H. Hayward, such interest had passed to the father by said assignment from the widow, has been assigned to said four distributees by said residuary clause in said decree of the probate court, and defendant has been released by them from liability.
Then, since the former appeal, it has become material to determine whether, on'the one hand, the whole beneficial interest in this
We are of the opinion that the evidence would warrant the jury in finding that the funds which went to pay defendant’s debts were drawn out of the father’s funds, or out of the funds of the partnership, or partly out of each; that W. H. Hayward never accounted to his father for the funds thus drawn out, but that the loss of the same remained the loss of the father or of the partnership, or partly of each, until after the death of W. H. Hayward; and therefore the court erred in ordering a verdict for plaintiff.
The order appealed from is reversed, and a new trial is granted.
BUCK, J., absent, took no part.