21 Iowa 11 | Iowa | 1866
Before this suit, was brought the said_ Francis had deceased, and the plaintiff was duly appointed, and quali? fied as executrix. By his will, the said Francis bequeathed and devised to the plaintiff (his wife) the notes of the defendant, as well as the title to the lots, with power io convey. This devise and bequest are (it may be conceded)t to the plaintiff individually, and not as executrix. If this be so, then the defendant claims (and this is the point he makes) that this action should, have been brought by the plaintiff individually, and" not as executrix ; in other words; the plaintiff, in her capacity as executrix, is not the real party in interest.
The objection is not well taken. Until the debts are settled' and legacies paid, the executor or administrator is entitled to the personal property, and may sue for and recover debts due the estate.
Again, under the law and the will, this is one of those cases in which the plaintiff has an election to sue either individually or representatively. Merritt v. Seaman, 2 Seld. 168; Oliver v. Townsend, 16 Iowa, 430, and authorities cited on p. 433. And as to “ real party in interest,” Cottle v. Cole, ante.
The court in the case at bar, very properly protected the defendant, by making an order that a deed be deposited with the clerk for him, to be delivered upon payment of the purchase-money.
Affirmed.