Harney v. Dutcher

15 Mo. 89 | Mo. | 1851

Scott, J.,

delivered the opinion of the court.

As to the point made under the new code of procedure, that the action must be prosecuted in the name of the real party in interest, and that consequently the suit may be brought in the name of the administrator de bonis non, he being now the real party, it may be observed, that the statute allows the trustee of an express trust to sue in his own name. A person with whom, or in whose name a contract is made for the benefit of another, is a trustee of an express trust. The promise, then, being made to Darby, the former administrator, he is either enitled to the benefit of it, in his own right, or he is trustee for others. If he is trustee, the suit may be brought in his name, for those who are entitled to the money. If the contract was made to him, in his own right, he is also the proper person to sue.

The case of Hirst vs. Smith, 7 D. & E., 182, maintains the doctrine that when the cause of action is such, that the first administrator may sue in his representative character, the right of action, devolves upon, the administrator de bonis non of the intestate. Thus understood, it is sustained by the case of Catherwood vs. Chaubauc, 1 Barn. & Cres. 150, But all the authorities show, that Darby could not have sued on, the contract,, now in controversy, in his representative character. None, will maintain, that in an action by Darby, on the agreement under consideration, a propert of his letters testamentary would have been ne=. eessary. This would seem to be the test, whether a suit is in his own right or in his representative character. When the property in any of the effects of the deceased, has been changed by the original executor or administrator, and has vested in him, in his individual capacity, such effects will go to his own administrator or exeeutor, and not to the administrator de bonis non. In Drue vs. Baylie, 2 Frem., an administrator made an underlease of the intestate’s term of years, reserving rent to himself, with a covenant to pay him, rent, and died; it was holden that his executor, and not the administrator de bonis non, should have the rent. The same principle, as to the person in whose name the- suit should be brought on a contract somewhat similar, was maintained in the case of Skippington vs. Budd, 3 Young &. Call, 1, and affirmed in the House of Lords. So, where one died intestate, and his son took out administration to him, and received part of a debt, being rent in arrear to the intestate, and accepted a promissory note for the residue, and then died intestate; it was held that this acceptance of the note, was such an alteration as vested in the son, and therefore, on his death, it should go to his administrator, and not to the administrator de bonis non. In the case of Boyd vs. Sloan, 2 Barley S. C., an executor, acting under a will which was afterwards set aside, based the lands of his supposed testator for a year, and the tenant enjoyed the demisee premises without interruption. It was held, that neither the administrator, subsequently appointed, nor the heir of the intestate could maintain an action, but that the suit should be brought in the name of the executor, he having made the contract. That although the executor may be thus styled, in the body of the note, and it made payable to him as executor, still, he and his personal representatives must alone sue upon it. That the term executor or administrator, is a mere descriptio personse.

The other Judges concurring, the judgment is affirmed.