Pritchard v. Norwood
30 N.E. 80
Mass.
1892
Check Treatment
Morton, J.

By his demurrer the plaintiff admits all the allegations of the defendant’s answer, except, it is agreed, the general denial contained therein. The answer, in substance, alleges that Mary I. Gould died intestate, and was at the time of her death the owner and holder of the note in replevin, and that her mother, Sarah F. Gould, was entitled as distributee to all of Mary’s goods and chattels, after the payment of her debts; that Mary left no debts, and no administrator was appointed on her estate till after her mother’s death; and that the mother took and kept possession of all the estate of Mary, including the note in question, believing she had the right to do so, and gave and delivered the note, upon a good consideration, to the defendant. No question is made that the plaintiff is the duly appointed administrator of the goods and estate of Mary I. Gould, who, we assume, died within twenty years. The defendant contends that Sarah F. Gould was the equitable owner of the note after the death of Mary, and after she had taken possession of it, and that he succeeded to her rights as equitable owner of it, and that under the St. of 1883, c. 223, § 14, he is entitled in equity and good conscience to be relieved absolutely against the plaintiff’s claim.

There is no doubt that upon the death of Mary I. Gould her mother’s right as distributee vested in her at once. Hayward v. Hayward, 20 Pick. 517. Nickerson v. Bowly, 8 Met. 424. 1 Redfield on Wills, (3d ed.) 412. This right gave to her the power to compel, under the direction of the Probate Court, an administrator, when appointed, to account to her ultimately for the estate. Cathaway v. Bowles, 136 Mass. 54. It did not vest in her a legal or equitable title to the estate as a whole, or to any particular portion of it. The title remained in abeyance till the appointment of an administrator, and then vested in him by relation from the death of Mary. Jewett v. Smith, 12 Mass. 309. Clapp v. Stoughton, 10 Pick. 463. Lawrence v. *542Wright, 23 Pick. 128. Hatch v. Proctor, 102 Mass. 351. 1 Wms, on Executors, (6th Am. ed.) 697.

As distributee or heir, the mother could lawfully take possession of the note, and keep it safely till the appointment of an administrator, but she could convey no title to it as against an administrator. Lawrence v. Wright, 23 Pick. 128. She could not have retained it herself, as against an administrator, even though she was the sole heir at law. Cathaway v. Bowles, 136 Mass. 54. Bean v. Bumpus, 22 Maine, 549, 554. Though the primary object in the appointment of an administrator is to secure the payment of the debts of the deceased out of his estate, and the distribution among the heirs of any balance that may remain, the Probate Co.urt may appoint an administrator where there are no debts, and that fact does not affect his title to or right to recover the personal property belonging to his intestate. Without doubt, as suggested by the defendant, intestate estates are frequently settled by the heirs among themselves, without the appointment of an administrator. So long, in such cases, as all parties are content to abide by the settlement, it suffices. What the result might be if, after the settlement, a dissatisfied heir or some other person should be appointed administrator, we need not now consider. The defendant concedes that the legal title to the note may be in the plaintiff, and the conclusion to which we have come on this branch of the case is, that he shows no equitable title to or interest in it, and therefore no ground for equitable relief.

The defendant contends, in the next place, that replevin will not lie for a promissory note. He has referred us to no authority for the proposition. In Bartlett v. Brickett, 14 Allen, 62, it seems to have been assumed, as a matter of course, that replevin would lie for bank bills, postage stamps, United States bonds, and promissory notes. And it seems also to have been so held in Black River Ins. Co. v. New York State Loan & Trust Co. 73 N. Y. 282, and Merrell v. Springer, 123 Ind. 485. See also Drake v. Auerbach, 37 Minn. 505 ; Smith v. Eals, 81 Iowa, 235; Deshler v. Dodge, 16 How. 622. We think it is clear that replevin can be maintained.

Judgment affirmed.