| Wis. | Nov 2, 1861
By the Court,
It appears to us that the complaint in this case discloses a good cause of action. The material and important part of it is, that the respondent had a dower interest in certain real estate, and that she authorized and empowered Chauncey P. King to sell that dower interest for her; that King sold the same and received therefor the sum of two thousand dollars, which he invested in certain securities therein named. If the two thousand dollars belonged absolutely to the respondent, it probably would not be contended that King could dispose of it as his own property, either by will or otherwise. "We infer from the argument of the counsel for the appellants, that the defense will be that the respondent did not own this money absolutely, but is only entitled to the interest of it during life. But that is not the theory of the complaint, as we understand it. That proceeds upon the ground that the money is solely and absolutely the respondent’s, in which case we cannot see why she is not entitled to the same. Eor surely it will not be claimed that the appellants, either individually or as executors of the will of King, have any right to hold this money, if it really belongs to the respondent. Nor does it vary the case, that King attempted to dispose of this money by his will, for clearly he could not dispose of what did not belong to him. He might give and bequeath his own property, but certainly could not the property of another. It is said that the legatees under the will of King are interested in this litigation, and should have been made parties to the suit. But this, we think, was unnecessary. The executors represent the estate. They are fully authorized to bring all suits to recover property belonging to their estate. If this money had belonged to their estate, and were in the
The order of the circuit court overruling the demurrer is affirmed.