Rainey v. Rudd

160 P. 1168 | Or. | 1916

Mr. Justice Benson

delivered the opinion of the court.

1. In the complaint it appears affirmatively that the defendants received whatever property they derived from the Sarell estate as legatees and not otherwise. It is contended by counsel for defendants that the complaint is fatally defective, in that it fails to plead any statute of the State of Colorado, giving a right of action against legatees for the debts of a testator. The note upon which this suit is predicated was payable at the office of John Hipp in Denver, Colorado, and the will of the maker thereof was probated in the same state. Therefore the right of action, if any exist, arose in Colorado and “the law of the place where the right was acquired or the liability incurred will govern as to the right of action”: Bergman v. Inman, 43 Or. 456 (72 Pac. 1086, 73 Pac. 341, 99 Am. St. Rep. 771).

2,3. At common law, no action can be maintained against a legatee upon a contract made by the decedent. The liability of the heir and devisee is confined to the real estate descended, with which the administrator or executor has nothing to do, while the next of kin and legatee take the property only after it has passed from the administrator or executor, in whose hands alone, under the common law, it is liable for the debts of the deceased: 14 Cyc. 207; 2 Woerner, Am. Law of Adm. (2 ed.), § 574. We must therefore look to the statutes for the right to follow assets into the hands of a legatee for the debts of a testator.

4,5. No statute of Colorado, where the right of action, if any arose, is pleaded which permits the suit to be prosecuted, and it has been held by this court that it will not take judicial notice of the statutes of another state, and, if they are not pleaded, it will be presumed that upon the questions involved the common law prevails.

6. Even if it could be held that the right of action arose in this state, the complaint is equally insufficient,, for the statute contains the following provisions:

“Legatees are liable to a suit in equity by a creditor of the testator to recover the value of any legacy received by them. The suit may be maintained against all the legatees jointly, or against any one or more of them severally. In such suit the plaintiff shall not recover unless he shows:

“1. That no assets were delivered by the executor or administrator * * to his next of kin; or,

“2. That the value of such assets has been recovered by some other creditor; or,

“3. That such assets are not sufficient to satisfy the demand of the plaintiff”: Section 488, L. O. L.

The complaint is silent as to each of these prerequisites. It follows that no error was committed in sustaining the demurrer, and the decree is affirmed.

Affirmed. Rehearing Denied.