27 Iowa 90 | Iowa | 1869
The rule appears arbitrary, unjust in its effects, and unsupported by reason, and ought certainly to be received with little favor by the courts of the present day. We have not been referred to a single modern case that supports it.
The authorities of this country hold the rule to be that the liability of the executor is not released or discharged, but the debt is in his hands general assets of the estate for the benefit of creditors, legatees, and all other parties interested. Stevens’ Adm'r v. Gaylord, 11 Mass. 266; Winship v. Bass et al., 12 id. 202; Pusey v. Climson, 9 Serg. & Rawle, 208; Leland v. Felton, 1 Allen, 333; Eichelberger v. Morris, 6 Watts, 43; Hall v. Pratt, 5 Hammond, 44; Gardner v. Hyer & Miller, 19 Johns. 189; Wood et ux v. Tallman’s Ex'r, Coxe, 157.
The provisions of the revision, §§ 2360, 2122, are not unlike the Massachusetts statute, as cited in Winship v. Bass et al., supra.
It would seem, indeed, under these statutory provisions, that the personal effects of every description of the tes
Tbe plaintiff, upon his appeal, assigns for error tbe refusal of tbe court to render judgment against tbe defendant as executor, claiming tbe rule to be that be is presumed in law to have received, in bis capacity as executor, tbe amount of tbe debt which be owed tbe testate, and that be is liable therefor as for a devastmit.
But we do not find that any exceptions were taken by tbe plaintiffs to tbe ruling of tbe court below upon this question, and it cannot, therefore, be considered or determined by this court.
Tbe judgment of tbe District Court is
Affirmed.
In the case before us the estate is represented by the plaintiff as receiver, with power to sue and collect the choses in action belonging to the estate, and no question is made of his right to maintain the action against defendant. We have a party who is capable of prosecuting an action upon the notes of the executor, and it is hot pretended that the estate has suffered loss on account of the failure of defendant to pay the notes further than ordinarily attend the non-payment of money. The reason of the rule in its application to the case having ceased, the rule itself must cease. The act of plaintiff in instituting and maintaining the suit contradicts the presumption upon which the rule is sustained — the payment of the notes by the executor. He ought not to insist on that which he denies.
His right to recover is based on the presumption that the executor has changed the notes into money, that is,
The original petition claimed to recover against defendant, upon the notes; an amendment setting out his appointment and qualification as executor, etc., claimed judgment in the alternative either against defendant in his capacity as executor, or individually. A demurrer to the amendment was overruled. At the trial the court submitted to the jury the simple question of “ defendant’s liability for the several sums of money represented by the several notes sued upon,” reserving for decision, after the verdict, the question of law whether judgment should be rendered against defendant individually or as an executor under the amendment. ' The verdict of the jury was, in the words thereof, “ That J ohn Pierson, Jr., the defendant, was indebted to his father, John Pierson, Sr., at the date of the death of John Pierson, Sr., in the sum of $2,704.86.” Upon this verdict judgment was rendered which, by its terms, draws interest at six per centum per annum. The notes bore interest above that rate. The judgment was rendered at a term subsequent to the rendition of the verdict.
The plaintiff objects to the manner the issue was put to the jury, to the sufficiency of the verdict, and to the judgment, because interest thereon is fixed at six per centum per annum, and assigns errors thereon.
The defendant, upon this rehearing, argues anew the point ruled in the former opinion upon his appeal, namely, that the debt of defendant is not assets of the estate, and was discharged by his appointment and qualification as executor. The order for rehearing was not made with the view to the reconsideration of that point which arose only defendant’s appeal, and no petition for a rehearing upon thereon was filed. We have, however, with proper care, read defendant’s argument upon that point, submitted upon this rehearing, and remain satisfied that our former ruling is correct.
Affirmed.