Cox v. Yeazel

• Decision Date: 07 October 1896
• Docket Number: 6685
• Citation: Cox v. Yeazel, 49 Neb. 343, 68 N.W. 483 (Neb. 1896)
• Parties: ALBERT W. COX, ADMINISTRATOR, v. JOHN YEAZEL ET AL
• Court: Nebraska Supreme Court

68 N.W. 483

49 Neb. 343

ALBERT W. COX, ADMINISTRATOR, v. JOHN YEAZEL ET AL

No. 6685

Supreme Court of Nebraska

October 7, 1896

ERROR from the district court of Adams county.Tried below before BEALL, J.

REVERSED AND REMANDED.

Batty & Dungan, for plaintiff in error.

Tibbets Morey & Ferris and Bedford Brown, contra:

This action is properly brought by plaintiffs below.They have legal capacity to bring this suit.Where an estate has been administered and all claims against it paid, and only one claim outstanding in its favor, which the administrator is unwilling to sue, and which for a number of years he fails and neglects to protect, the heirs can bring the suit.(Fretwell v. McLemore,52 Ala. 124;Salter v Salter,98 Ind. 522;Sanders v. Moore,12 S.W 783;Vanderveer v. Alston,16 Ala. 494;Plunkett v. Kelly,22 Ala. 655;Frowner v. Johnson,20 Ala. 477;Marshall v. Crow,29 Ala. 278;Amis v. Cameron,55 Ga. 449;Needham v. Gillette,39 Mich. 574;Foote v. Foote,61 Mich. 181;Kilcrease v. Shelby,23 Miss. 161;Watson v. Byrd,53 Miss. 480;Ricks v. Hilliard,45 Miss. 359;Wright v. Smith,19 Nev. 143;George v. Johnson,45 N.H. 456;Hibbard v. Kent,15 N.H. 516;Woodman v. Rowe,59 N.H. 453;Begien v. Freeman,75 Ind. 398;Holzman v. Hibben,100 Ind. 338;Lewis v. Lyons,13 Ill. 117;Abbott v. People,10 Ill.App. 62;McCleary v. Menke,109 Ill. 294;Walworth v. Abel,52 Pa. 370;Weaver v. Roth,105 Pa. 408-413;Patterson v. Allen,50 Tex. 23;Webster v. Willis,56 Tex. 468;Taylor v. Phillips,30 Vt. 238;Babbitt v. Bowen,32 Vt. 437;Richardson v. Cooley,20 S.C. 347;Randel v. Dyett, 38 Hun [N.Y.] 347;Wood v. Weimar,104 U.S. 787;Cooper v. Davison, 5 So.[Ala.]650;Carter v. Owens,41 Ala. 217;Sullivan v. Lawler,72 Ala. 68;Thomas v. White,14 Am. Dec.[Ky.]56;Gilbert v. Thomas,3 Ga. 575;Worthy v. Johnson,52 Am. Dec.[Ga.]401;Patton v. Gregory,21 Tex. 513;Roger v. Kennard,54 Tex. 36;Hargroves v. Thompson,31 Miss. 211;Dorsheimer v. Rorback,23 N.J.Eq. 46;Hubbard v. Ricart, 23 Am. Dec.[Vt.]202.)

OPINION

NORVAL, J.

The case is substantially this: That in 1877James Yeazel resided in Champaign county, Illinois, and being the owner of considerable real estate in said county, he negotiated a loan, secured by a mortgage thereon, for $ 5,000, of which sum he loaned $ 3,000 to his son, Abraham Yeazel, who then resided in this state, to enable the latter to engage in the business of banking.No note was taken for the $ 3,000 sent to Abraham Yeazel, yet the latter at various times paid interest on the money, and otherwise acknowledged the validity of the indebtedness, but never paid the principal to his father.In 1879, James Yeazel having become financially involved conveyed his lands to his said son Abraham, who then resided at Hastings, for the purpose of placing the same beyond the reach of the creditors of the father.There was no consideration whatever for this conveyance.In 1881Abraham Yeazel borrowed $ 8,000 and secured the payment thereof upon the land so conveyed to him, and out of the proceeds arising from this loan the $ 5,000 mortgage and accrued interest was paid off and canceled, and a judgment recovered against James Yeazel by an Illinois bank was paid, and the balance of the $ 8,000, amounting to over $ 1,000, was paid over by the mortgagee to Abraham Yeazel, who retained the same.In 1886 about 100 acres of the land was sold, and $ 3,000 of the consideration was applied on the mortgage last aforesaid, a new note for $ 6,000, secured by a mortgage on the remainder of the land, was executed by Abraham Yeazel, and the balance of the $ 8,000 loan was paid off.Various other sums of money, it is claimed, were loaned by James Yeazel to his said son which were never paid back.On December 5, 1887, Abraham Yeazel and wife conveyed the unsold portion of the land, subject to the $ 6,000 mortgage, to John Yeazel in trust for the children of the said James.In January, 1888, the said James Yeazel died intestate, leaving, him surviving, ten children and heirs at law.One White was duly appointed administrator by the probate court of Champaign county, Illinois, and various claims were allowed against the estate.Subsequently, the estate was declared insolvent.Shortly thereafter White resigned, and one Patrick Richards was appointed administrator de bonis non, who qualified as required by law.In 1888 an action was brought by certain of the heirs of James Yeazel in the circuit court of Champaign county to obtain a partition of said real estate, against the resident heirs of the deceased and the administrator de bonis non, but Abraham Yeazel was not a party to the litigation.Pending the action certain of the creditors of the deceased intervened, and filed creditors' bills praying that the deeds from James to Abraham, and from Abraham and wife to John, be set aside as fraudulent as to said creditors, and that the real estate be subjected to the payment of their claims.The prayer of the intervenors was granted, and the lands were sold in accordance with the decree.In 1890Abraham Yeazel died, leaving, him surviving, his widow and a minor child.The widow was appointed administratrix of his estate by the county court of Adams county, and subsequently Albert W. Cox was appointed administrator de bonis non of the estate of Abraham Yeazel, deceased.On January 8, 1891, the defendants in error, as heirs of said James Yeazel, deceased, filed in the county court of Adams county a claim against the estate of Abraham Yeazel, deceased, for the sum of $ 6,000 on account of moneys so loaned by James to Abraham.Objections to the allowance of the claims were made, and upon the hearing on the testimony adduced by the claimants alone, the county court disallowed the claim.From this order of disallowance the claimants appealed to the district court, where they filed a petition setting up therein, inter alia, the matters already detailed.The administrator demurred to the petition upon the following grounds:

1.Plaintiffs have no legal capacity to sue.

2.Several causes of action are improperly joined.

3.Misjoinder of partiesplaintiff.

4.The petition does not state a cause of action.

5.The several causes of action are barred by the statute of limitations.

The demurrer was overruled by the court, an answer was filed alleging the same defenses interposed by the demurrer, and others which need not be stated here.Claimants filed a reply, and upon a trial of the issues to a jury a verdict was returned against the estate of Abraham Yeazel for $ 5,215.54, upon which judgment was subsequently rendered.The administrator has brought the record to this court for review.

Many interesting legal propositions are discussed in the briefs of counsel, but the most important controverted question presented by the record, and the controlling one in the case, is whether the heirs of James Yeazel can maintain an action to recover the moneys in question.It must be conceded, we think, that two suits cannot be successfully prosecuted to collect the same,--one by the heirs of the decedent and another by the personal representative.The question arises, then, in whose favor does the right of action exist?The title to the debt or chose in action did not vest in the heirs of James Yeazel immediately upon his death, but passed to his administrator, who is entitled to all the personal property, rights, and credits of the deceased.They are assets in his hands, chargeable first with the payment of the debts of the estate and costs and expenses of administration.It is only the residue of the personalty remaining after such debts and expenses are paid that descended to the heirs or distributees.(Gilkey v. Hamilton, 22 Mich. 283;Babcock v. Booth, 2 Hill [N.Y.] 181;Valentine v. Jackson, 9 Wend. [N.Y.] 302;Rockwell v. Saunders, 19 Barb.[N.Y.]473;Lawrence v. Wright, 40 Mass. 128;Whit v. Ray, 26 N.C. 14, 4 Ired. 14;Beecher v. Buckingham, 18 Conn. 110;Neale v. Hagthrop, 3 Bland Ch.[Md.] 551.)If, then, the title to the personal assets of James Yeazel vested in his administrator, for the purpose of collecting and disposing of the same for the benefit of the creditors and heirs or distributees, it necessarily follows that the administrator, and not the heirs, is the proper party to bring this action to recover the debt in question.

The rule is thus stated in Schouler, Executors & Administrators[2d ed.] sec. 239: "The title of the executor or administrator, as representative, extends so completely to all personal property left by the decedent as to exclude creditors, legatees, and all others interested in the estate.They cannot follow such property specifically in the hands of others, much less dispose of it; but the executor or administrator is the only true representative thereof that the law will regard.The legal and equitable title to all the personal property of the deceased, including choses in action and incorporeal rights, vests in fact in the executor or administrator as against all others, during the suitable period for administration, and he holds this property as a trustee and proper representative of all parties interested therein."And at section 276 the same author says: "A payment made by a debtor of the estate to anyone, even to the residuary legatee or next of kin, is a mispayment, and from such person the representative may recover."

The following authorities, in addition to those already cited sustain the doctrine that the heirs cannot maintain this action: 7 Am. & Eng. Ency. of Law, secs. 232,258,307,360;2 Woerner, American Law of Administration, sec. 322;Haynes v. Harris, 33 Iowa 516;Rhodes v. Stout, 26 Iowa 313;Baird v. Brooks, 65 Iowa 40, 21 N.W. 163;Richardson v. Vaughan, 86 Tex. 93, 23...