69 Mo. App. 197 | Mo. Ct. App. | 1897
ecuted by, an executor or administrator. It is quite true that personalty, including choses in action, goes to the executor or administrator of the estate and that the realty descends directly to the heir (Becraft v. Lewis,
But in the case before us, it does not appear at what date Nathan Scarritt died, so we are not informed whether there was a failure on the part of the defendant lessee to pay during said Scarritt’s lifetime. But however that may be the substantial right of action on the covenant arose on the payment of the tax incumbrance, and that was done by th,e heirs, and it is altogether probable, as gathered from the dates appearing in tho records, that a part of the technical breaches of the covenant were committed before, and a part after, Scarritt’s decease. On such state of case it is said: “So it should seem that the heir, and not the executor, is the proper plaintiff where there is a continuing breach in the time of both ancestor and heir, but the substantial breach is in the time of the latter.” 2 Platt on Leases, 360. So, therefore, being of the opinion that the heirs are the proper plaintiffs, we rule the point against defendant. v
The judgment is affirmed.