129 Iowa 498 | Iowa | 1905
Rachel Fussell died testate December 15, 1902. Her will bearing date January 24, 1898, was admitted to probate, and Martin II. and Horton V. Fussell appointed executors. The fifth clause devised certain real estate to her daughter, Dorcas Stansberry, “ to have and to hold to her the said Dorcas Stansberry during her natural life, with remainder to her children, share and share alike.
The notes referred to were executed January 27, 1892, for $224- each, with interest, the one payable February 1, 1893, and the other a year later. The devisee failed to make payment within the year after testatrix’s death, and this action was begun in which the executors prayed for an order to sell the property as directed by the. will. Thereupon, it was stipulated that. Mrs. Stansberry had been adjudged a bankrupt September 20, 1902, and was discharged as such in January or February, 1903. Contrary to the ruling of the district court, this furnished no defense. The discharge in bankruptcy did not operate as an extinguishment of the debt; it merely destroyed the remedy by enabling the debtor to plead the discharge in bar. Bush v. Stanley, 122 Ill. 406 (13 N. E. Rep. 249); Farmers & Mechanics' Bank v. Flint, 17 Vt. 508 (44 Am. Dec. 351). See collection of cases in 16 Am. & Eng. Ency. of Law (2d Ed.) 789. While the legal obligation to pay is gone, the moral obligation remained precisely as before, for the debt is still unpaid, and constituted a sufficient consideration to support a new promise to pay the same as in the case of a debt barred by the statute of limitations. This being true, the notes of the devisee, notwithstanding her discharge in bankruptcy, were never paid. Moreover, they were still enforceable against L. L. Stans
Were this an action on the notes, the plea in har of either the statute of limitations or the discharge in bankruptcy would be good. But it is merely an application for an order of the court to carry out the terms of a will which speaking as of the date of testatrix’s death explicitly required the sale of the land, upon the failure to pay the notes within the year. The'notes were not paid, and we know of no reason for not giving effect to the testatrix’s will. Appellee argues that by expressly mentioning the bar of the statute of limitations, other pleas in bar were intended to be allowed. This cannot he so, because inconsistent with the evident design of exacting actual payment. It is also suggested that the devisee’s children should have been made parties. In the absence of any showing that she had any, we cannot assume that the necessary parties were not before the court. An order should have been entered directing the sale of the land as prayed. — Reversed.
