20 Or. 307 | Or. | 1891
— There is but one question presented by this record, and that is whether the administrator could make a transfer of the note to the plaintiff as a part of her distributive share of the estate without an order from the probate court. The defendants admit the execution of the note, nor do they deny their liability to pay it, but they seek to abate the action upon the ground that the transfer did not pass the title to the plaintiff, or out of the estate of her deceased husband, and that without an order for the transfer by the probate court, they would still be liable to that estate. At common law the legal title to all personal property of the deceased vested in the executor or administrator with absolute power to dispose of it; and, unless there was fraud or collusion between him and the person to whom he transferred it, the creditors or next of kin could not follow it into the hands of the alienee. In Williams on Executors it is said that: “It is a general rule of law and equity that an
That the executor or administrator’s power of disposition over the choses in action of the deceased remains unaffected by this legislation, is likewise clearly stated in Rhame v. Lewis, 13 Rich. Eq. (S. C.) 298, in which the court says: “This legislation cannot, however, be understood as intended to apply to all the assets of an intestate. The terms used, 'personal estate,’ ‘personal property,’ are certainly large enough to embrace every class. But choses in action, at least such as are merely securities for money due, are not properly the subject of sale; their conversion is ordinarily by collection, and such conversion by public auction is an unusual proceeding. Many reasons which may be supposed to have induced this legislative restraint upon the administrator’s power of sale are wholly inapplicable to them, and the- sales contemplated by the acts being, although not positively required, plainly assume to be on credit, which result in a mere exchange of one chose in action for another. Yet, though the proper method of conversion in such ease is by collection, circumstances may exist in which a more speedy conversion by ex change with a third person for the money, or even by pledge for advances, may be important to the interests of the administration. The administrator’s power of disposition over his intestate’s choses in action remains unaffected by this legislation and continues as his power has been described to have been over the assets generally before the Acts. Any one may securely take them from him, either absolutely or conditionally, by any of the usual
These decisions show that it was not the intention of such legislation in requiring an order for the sale of personal property to include choses in action, or to deprive the executor or administrator of the power of disposition over them. This doctrine of the common law, that the title to them is invested in him, and that he may sell or dispose of them, by indorsement or otherwise, so as to carry the title,--and that such purchasers or indorsees may maintain an action on them in their own name, wherever an assignee is per-, mitted to sue in his own name, is sustained by numerous adjudications. (7 Am. & Eng. Ency. 298.) So, too, he may transfer such notes to a distributee of the estate in payment of his share of the estate, and such transferee may thereupon maintain an action in his own name. In Clark v. Moses, 50 Ala. 326, the note came to the plaintiff by transfer from the executor, to whom it was paid by the payees, as so much of her distributive share of her husband’s estate, and without any order of the probate court, and the court held that a promissory note may be transferred by an executor or administrator to a distributee in payment pro tanto of his distributive share, and that such transfer passes a title to the distributee, on which he may maintain an action against the maker, or successfully defend an action by an administrator de bonis non. In Hough v. Bailey, 32 Conn. 288, it was objected that the transfer was void because the requirements of the statute in respect to distribution of the estate were not complied with, but the court held otherwise, saying that “the title to the note was vested in the administrator, and he had authority to collect or otherwise dispose of it. If he disposed of it improperly it might render him liable on his bond, but would not affect the title of his bona fide assignee.” So, too, the same principle was applied in Marshall County v. Hanna, 57 Iowa, 372, where the defendant questioned the plaintiff’s right of action and sought to abate it, although not denying his liability upon the notes; but the court held
These authorities emphasize the general power with which an executor or administrator is invested in respect to choses in action, and his authority to sell or dispose of them by indorsement to another, or to a distributee, without an order of the probate court, and that such transfer is valid and passes the title, so as to enable the transferee or distributee to maintain an action thereon, and that the payors or makers of them, in the absence of fraud or collusion between the administrator and the person to whom he transferred them, can not abate the action on the ground of a want of authority to make such transfer. “ Such being the general powers of the executor, or administrator, he may,” said Dixon, C. J., “if he chooses, but at his own risk, make an advance to the heir or distributee before a decree for that purpose. His knowledge of the condition of the estate may frequently enable him to do so without any real danger to himself; but if such advances are not afterwards covered by a decree, he and his sureties are responsible. If, therefore, the transfer of the note and mortgage in this case was made to the plaintiff as an advance upon his distributive share, as heir at law of the deceased, it does not, in the absence of any evidence of fraud, collusion, or deficiency of assets, with which to meet the debts due from the estate, constitute any valid objection to a recovery.”
Within the principle of these adjudications, upon the facts as disclosed by this record, the defendants have no standing ground upon which to avoid the payment of this
Nor may it be amiss to refer to another aspect of this case, which is entitled to some consideration. So far as this record shows, the plaintiff is the sole heir, but the argument conceded that the plaintiff and the administrator are the only heirs. Why, then, if between themselves, they should agree to make this disposition of the note, is not such a distribution valid? More than five years have elapsed since the death of the original payee, and the only defense is one in abatement for lack of authority on the ground that no title passed by the transfer, and, therefore, there could be no right of recovery in the plaintiff, no matter if the estate was free from debt, and the transfer free from fraud. The argument authorizes us to assume that there was no fraud or collusion, or deficiency of assets, and yet there could be no recovery. In such case, it is difficult to see what objection a creditor could make to the distribution. Such an arrangement, when fairly made, could not injure any one, and there would seem to be no reason that the settlement or distribution which the parties concerned have made, should not be accepted by the court as satisfactory so far as it goes, when the administrator afterwards is summoned to render his accounts.
In any view, it seems to us there was no error, and that the judgment must be affirmed.