Bunker v. Taylor

• Decision Date: 29 August 1900
• Citation: 83 N.W. 555,13 S.D. 433
• Parties: BUNKER et al. v. TAYLOR et al.
• Court: South Dakota Supreme Court

83 N.W. 555

13 S.D. 433

BUNKER et al. v. TAYLOR et al.

Supreme Court of South Dakota

August 29, 1900

Appeal from circuit court, Yankton county; E. G. Smith, Judge.

Action by George V. Bunker and others, administrators of James V Bunker, deceased, substituted by order of court in place of Lucy M. Bunker, deceased, against C. B. Taylor and Maris Taylor, on a note. From a judgment for plaintiffs, Maris Taylor appeals. Affirmed.

R. B Tripp, for appellant. C. B. J. Harris and French & Orvis, for respondents.

CORSON J.

This was an action originally commenced by Lucy M. Bunker, as executrix of the estate of James V. Bunker, deceased. Since the commencement of the action, the executrix, Lucy M Bunker, has died, and on motion George V. Bunker, William I. Bunker, and Samuel F. Bunker, administrators of the estate of James V. Bunker, deceased, have been substituted as plaintiffs in place of Lucy M. Bunker, executrix, deceased. The action was brought upon a promissory note executed by C. B. Taylor and Maris Taylor to said James V. Bunker, deceased. On the trial the defendant Maris Taylor moved the court to dismiss the action for the reason that the present administrators have no legal right to maintain the same. The death of Lucy M. Bunker, executrix, who commenced the action, is admitted, and the appointment of the three persons named as administrators was shown by the records of the county court of Yankton county, and their due appointment is virtually conceded by the appellant. In addition to these proofs and facts admitted, the substitution of the parties named was made upon consent of the attorney for the appellant, Maris Taylor. It is, however, contended on the part of the appellant that the administrators of the estate, appointed subsequently to the death of the executrix, cannot, under the provisions of our Code, be substituted in place of such executrix, and that the action must, therefore, necessarily abate. Without considering at this time the effect of the written consent and request that the three administrators should be substituted, made by the attorney for the appellant, we shall proceed to discuss the question of their substitution under the provisions of the Code of Civil Procedure of this state. Section 4881, Comp. Laws, provides: "No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representatives or successor in interest." It will be observed that it is declared that "no action shall abate *** if the cause of action survive or continue." This action being to recover the amount due upon a promissory note, no question of the survival of the cause of action can be raised. It will also be observed that in case of the death or other disability of a party the court may allow the action to be continued by or against his representatives or successor in interest. The theory of the counsel for the defendant is that the administrators appointed upon the death of the executrix were not her representatives or successors in interest, but we cannot agree with counsel in this theory. The suit commenced by the executrix was for the benefit of the estate, and all money collected by her in the action would have been assets of the estate of James V. Bunker, deceased. She therefore had no personal interest in the action, and was prosecuting it simply as the representative of the Bunker estate. Upon her death the administrators named were appointed as her successors to manage and control, under the direction of the county court, the assets of the estate. In contemplation of law it is the estate itself that is the real party in interest in the action. As before stated, all moneys collected by the proceedings would become assets of the estate, and such assets, when unadministered upon by the deceased executrix, would pass to the administrators appointed by the county court. Possibly, by the former system, under which the rights and powers of administrators and executors were essentially different from those possessed by administrators under the present system, such an action may have abated upon the death of an executor; but no such rule seems to obtain under the modern system. In the early case in New York of Bain v. Pine, 1 Hill, 615, decided in 1841, it was held that, though one who succeeds another in the administration of an estate may continue a suit commenced by his predecessor, he cannot be compelled to do so against his will. In that case Nancy Bain was appointed administratrix with the will annexed of Peter Bain, deceased. She died, and administration de bonis non with the will annexed of Peter Bain, deceased, was granted to Silas Brown. The defendant moved for a rule substituting Silas Brown, administrator, etc., as plaintiff, in place of Nancy Bain, deceased, and that the suit proceed in the name of said Brown. This motion was opposed by the administrator, Brown, and the court, speaking by Bronson, J., says: "The object of the statute to which the counsel refers was to prevent an abatement where the new representative chooses to come in and continue the suit. Brown, who has succeeded Mrs. Bain in the administration, might have taken her place, and gone on with the action; but we think he has an election, and cannot be compelled to do so against his will." It will be seen that the learned judge in that case assumes that Brown, as the successor of Mrs. Bain, might have taken her place, and gone on with the action. We have not the section of the statute referred to before us, but think we may assume, from the language used, that it was substantially the same as the statute of this state, as the subsequent Code of New York contains sections substantially the same as those we are now considering. In Wood v. Flynn, 30 Hun, 444, the supreme court of New York held that an action brought by a sole surviving executor, who has died, may be revived, and an administrator with the will annexed be substituted in place of the deceased executor, and the court may direct that his name be substituted in the record and pleadings, and that the pleadings, proceedings, and evidence already had and taken may stand as the pleadings, proceedings, and evidence in the action so revived. Section 757 of the Code of Civil Procedure of New York, under which that decision was made, reads as follows: "In case of the death of a sole plaintiff, or of a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative, or successor in interest." In that case the court says: "This section provides a summary remedy in such cases, and seems to have been intended to direct the continuance of the action upon the original pleadings in the name of the substituted party, plaintiff or defendant, or as the case may be. There would seem no occasion for supplemental issues, because the whole business, by this section, is to be entertained on motion. It was intended that, if any reason for supplemental issues existed, it should be disclosed on the motion." It will be noticed that that section, while not containing all the provisions contained in section 4881 of our Code, is substantially the same as the portion of that section heretofore quoted. The term "successor in interest," as used in our section of the Code, is very broad and comprehensive, and, in our opinion, includes the administrator of an estate appointed in the place of a deceased executor. The only interest that the executor has in the estate is to collect the assets for the benefit of the estate. Upon the executor's death the administrator appointed is vested with precisely the same interest, namely, to collect the assets of the estate, and hold them for the benefit of the creditors, devisees, legatees, and heirs, and he is, therefore, the successor of the deceased executor. We have not deemed it necessary to review the cases cited, as, in our view of the case, the statute is susceptible of but one construction as applicable to cases of this character. We are of the opinion that whenever the action brought by the administrator or executor is for the benefit of the estate only, and such administrator or executor dies pending the action, the administrator appointed to succeed him is, within the meaning of the statute, his successor in the action, and such administrator is the successor in interest of the deceased administrator or executor. Snyder v. Fiedler, 139 U.S. 478, 11 S.Ct. 583, 35 L.Ed. 218.

On the trial the defendant offered in evidence the deposition of C B. Taylor taken in 1896 in Memphis, Tenn. Portions of the evidence tending to prove payment made by C. B. Taylor to James V. Bunker, deceased, during his lifetime, were excluded, apparently upon the ground that C. B. Taylor was a party to the action. This same evidence was excluded on the...