111 Ill. App. 567 | Ill. App. Ct. | 1904
delivered the opinion of the court.
The only question in this case is, whether an executrix to whom a promissory note, payable to the order of her testator, has been, bequeathed, and which was not indorsed by the testator in his lifetime, nor by the executrix in her representative capacity, as executrix, can, after her final account as executrix has been approved, and she discharged as executrix, maintain an action at law on the note in her indixddual name.
Counsel for appellant, in support of the proposition that appellant may maintain her suit, relies solely on sections 1 and 2 of the Statute of Wills, contending that by the bequest of the note to appellant, the legal title to the note was vested in her as legatee. This contention cannot prevail.
Appellant claims and sues in her individual name. Her claim is not as assignee of the note, but merely as legatee under the xvill, and that, as legatee, she has the legal title. In McLean County Coal Co. v. Honora Long, 91 Ill. 617, John Long, in his lifetime, sued the coal company to recover the value of a quantity of coal which the company had mined and removed from his land, and converted to its own use, and recovered judgment, which was appealed to the Supreme Court, which court reversed the judgment and remanded the cause. Pending the interval between the reversal of the judgment and the redocketing of the cause in the trial court, John Long died, having, by will, devised and bequeathed all his property to his wife, Honora Long; and, when the cause was redocketed, she was substituted as plaintiff; and, on second trial, recovered judgment. The judgment was reversed, on the ground that Honora Long could not maintain the action, the court saying:
“ Had Long in his lifetime sold this claim, xvould any one contend that the purchaser could have maintained an action in his own name? Or, suppose he had bequeathed this claim to some one else, and willed the remainder of his property to appellee, would any one suppose that the legatee could sue and recover in his own name? Had Long bequeathed to appellee notes or contracts, does any one supfiose she would thereby derive authority to sue? The will does not vest the legal title to a cause of action in the legatee, any more than would his assignment of such a claim in his lifetime. The appointment of an executor to carry out the provisions of the will, vests the title to the goods, chattels and choses in action in the executor, as a qnad trustee, for the use of the creditors, distributees and legatees. He can maintain trover, replevin, or other appropriate action for the recovery of the personal property, or to recover damages for its wrongful injury or destruction. The legatee cannot maintain such actions, and the same is true of choses in action. These are elementary rules that need no discussion.”
Sections 4 and 5 of chapter 98 of the statute are as follows :
“ Sec. 4. Any such note, bond, bill, or other instrument in writing, made payable to any person named as payee therein, shall be assignable, by indorsement thereon, under the hand of such person, and of his assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.
“ Sec. 5. Any assignee to whom such sum of money or personal property is, by such indorsement or indorsements, made payable, or in case of the death of such assignee, his executor or administrator, may, in his own name, institute and maintain the same kind of action, for the recovery thereof, against the person who made and executed any such note, bond, bill or other instrument in writing, or against his heirs, executors or administrators, as might have been maintained against him by the obligee or payee, in case the same had not been assigned; and in every such action, in which judgment shall be given for the plaintiff, he shall recover his damages and costs of suit, as in other cases.”
Section 4 is held to be so exclusive of all modes of assignment save that prescribed, that the assignment of a note cannot be made by the payee or assignee of the note, by an instrument "separate from the note, so as to vest the legal title in the assignee. Ryan v. May, 14 Ill. 49; Chickering v. Raymond, 15 Ill. 362; Badgley v. Votrain, 68 Ill. 25; , Keeler v. Campbell, 24 Ill. 288; Packer v. Roberts, 140 Ill. 671.
Appellant, being the executrix of the will, the legal title to the note vested in her, as executrix, and, while she remained executrix, she could have maintained an action on it. McLean Coal Co. v. Long, supra; Makepeace v. Moore, 5 Gilm. 474.
But the will does not vest the legal title to a note in the executor in his private or individual capacity, so that he may maintain a suit on it, merely as an individual, or otherwise than in his representative capacity, as executor.
The judgment will be affirmed.
Affirmed.
