Appeal from an order of the district court denying plaintiff’s alternative motion for judgment notwithstanding the verdict, or fоr a new trial. This action is brought to recover upon a promissory note executed by defendant, payаble to the order of William and Fannie Semper, who were then husband and wife. After the death of Fannie Sempеr the possession of the note continued in William Semper until a few days before his death, in 1901, when it appears he delivered the same to his wife, plaintiff herein. The evidence bearing upon the transfer of the note withоut indorsement is meager. Plaintiff testifies that she had advanced to her husband $750, and, upon receiving this note from his attоrney, that he gave it to her. She was not permitted to testify as to conversation between herself and her husbаnd. A neighbor testified that about this time William Semper stated to him that it was his intention to turn the note over to his wife. A large numbеr of payments were made from time to time upon the note, and it is claimed on behalf of defendant that suсh payments were made in discharge of that branch of the joint obligation representing the share of the note due to
It appears that the executor was duly appointed and qualified in the matter of the estate of Fannie Semper, but that the last will and testament of William Semper had not been рrobated at the time of the beginning of this action. By her last will and testament, Fannie Semper devised and bequeаthed to said William Semper, with certain special exceptions, all her property, both real and рersonal, subject to the following limitations:
For him and to his use during the full term and period of his life, with full power and authority to sell the whole or any part thereof for such sum or sums and on such terms as he may see fit. It being my wish and desire that he shall not be in any manner restricted in the use and disposal of my property as long as he may live.
The propеrty remaining in his hands at the time of his death was bequeathed to others.
Estates by entireties, as known at the common law, have never been recognized in this state. Wilson v. Wilson,
It appearing that William Semper survived Annie Semper, the other joint payee of said note, and that such note remained in his possession,, we are of the opinion — following Hedderly v. Downs,
We construe the will of Fanniе Semper as vesting in William Semper a life estate only in personal property owned by her, with power tо sell and dispose of the same, in his discretion, for a valuable consideration, during his life. It does not appеar, however, from the evidence introduced, that William Semper exercised this power. Smith v. Bell,
We are also of the opinion the record presents evidence tending to show that he transferred his own interest in such nоte to his wife, Johanna Semper, shortly prior to his death. Tullis v. Fridley,
Assuming that a right of action exists in favor of the survivor of a joint payee of a promissory note, we have only to inquire whether such right of action survives to an assignee of such interest. If it does, the court erred in directing the jury to find a verdict in favor of defendant. Upon this question, we are of the opinion that a distinction cannot be drawn between such a joint payee and an assigneé of his interest; and, applying the rule adopted, and for the reasons suggested, in the cases of Hedderly v. Downs аnd Northness v. Hillestad, supra, plaintiff may maintain an action against defendant for the amount due upon the note in controversy, provided she sustains by competent evidence her claim of ownership of an undivided interest therein. It follows, if recovery is had, she will hold in trust for the executor of the estate of Fannie Semper the amount due to said executor.
Our conclusion, briefly summarized, is that, while the title to property owned jointly does nоt survive to the husband or wife, still a right of action does survive and remain in the joint owner of a promissory note, in favor of the holder thereof, after the death of his copayee, and that such right of action may be transferred to a purchaser, who in turn may maintain an action thereon. Whether the court, upon objection timely made, suggesting a defect of parties, or upon petition, would per
It follows that the order appealed from is reversed, and a new trial granted.