Gayle v. Reynolds

• Decision Date: 31 December 1846
• Citation: 1 Tex. 184
• Parties: GAYLE AND GAYLE v. ENNIS AND REYNOLDS
• Court: Texas Supreme Court

1 Tex. 184

GAYLE AND GAYLE

v.ENNIS AND REYNOLDS

Supreme Court of Texas.

December Term, 1846.

Appeal from Jackson County.

An administrator may sue upon a note made payable to him as such in his own name, without reference to his fiduciary character. [ Ante, 87; 2 Tex. 227, 412;11 Id. 142;13 Id. 372;15 Id. 44;20 Id. 168; 25 Tex. S. 305; 28 Tex. 622.]

A note made payable to A as administrator of B is a note payable to A. The words “as administrator of B” are merely discriptio personæ, and may be treated as surplusage.

An executor or administrator may assign a note made to him as such for a debt due to his testator or intestate.

The facts of the case are stated in the opinion of the court, delivered by Mr. Justice Wheeler.

J. Webb, for appellants.

The plaintiffs showed no title in themselves to the notes sued on. The suit was brought in their individual names without reference to their fiduciary character as administrators of G. W. Reynolds; and by their own showing the notes were the property of the estate of G. W. Reynolds. 1 Mart. (N. S.) 301, 373; 2 Stark. 317.

The petition was filed in the name of the appellees, alleging an indebtedness to them personally. Process was sued out in their names as administrators of G. W. Reynolds. The suit was carried on from thence to the time of rendering final judgment in their names as administrators, but judgment was finally rendered for them in their own individual right.

This is submitted as error. 2 Stark. 318, 319.

The interest in the note assigned by C. Ennis as administrator of A. J. Reynolds, to Ennis and Reynolds, administrators of G. W. Reynolds, did not pass to them by the assignment. 9 Mass. 334.

Buckley, for appellees.

An executor, who takes a note payable to himself, as “executor,” may sue in his own name, without reference to his character as executor. 5 Martin, 204.

If he sue as “executor,” he need not establish his character as such. 2 Mart. (N. S.) 274; 10 Martin, 456. Oyer of his letters is not demandable. 6 Ala. 399.

WHEELER, J.

This was an action brought by the plaintiffs and appellees (Ennis and Reynolds) against the appellants, on two promissory notes; one of which was payable to the order of C. Ennis, administrator of A. J. Regnolds, and indorsed by him to the plaintiffs; the other, to Ennis and Reynolds, administrators of G. W. Reynolds.

The plaintiffs sued in their own names, and not as administrators. In their petition they do not profess to give notes in hæc verba, but set them out according to their legal effect and operation, and copies of them were filed with the petition as a part of it.

The citation describes the plaintiffs as “administrators of G. W. Reynolds.”

The answer is a general traverse, or denial, putting the plaintiffs upon proof of the material averments in their petition.

The record contains a bill of exceptions, from which (among other matters not now insisted on), it appears that the “defendants objected to the introduction, in evidence, of the first described note; but the court overruled the objection.”

Judgment was rendered for the plaintiffs; to reverse which it is contended:

1st. That as the defendants were cited to answer the plaintiffs as administrators, and judgment was rendered in their favor, in their own right, the proceediugs are irregular and erroneous.

In issuing the citation, it was the obvious duty of the clerk to follow the petition, in describing the persons of the plaintiffs, and in setting forth the capacity and character in which they sued. They are there presented in their capacity as natural persons, in their own right, suing in their own names, and are therefore improperly described as administrators, etc. But can the insertion of these words vitiate the proceedings? We think not. The words added in the citation, had objection been taken below, might have been considered as descriptive of the persons suing, and not of the character in which they sued; or they might have been treated as surplusage. 2 Ham. 156,383. But no objection to the citation was taken below. The defendants appeared and answered to the action, and had valid objections to the sufficiency of the citation really existed, they come now too late. They are waived or cured by the appearance and answer of the defendants. No repugnance between the petition and citation can now be regarded. The latter, having brought the party into court, has performed its office and is now functus officio. Its contents are therefore wholly immaterial and not the subject of revision.

2d. It is contended that the court erred in permitting the note objected to at the trial, to be given in evidence; that, being payable to Ennis, ““administrator,” etc., it was not susceptible of transfer by indorsement, and that the notes set forth in the petition, being, the one indorsed, and the other payable, to the plaintiffs as “administrators,” they could not maintain the action in their own names.

The last proposition embraced in this objection is met by the opinion of the court in the case of McKinny v. Lewis, Dallam, 545, where it is said (upon the authority of Bayley on Bills, 335, cited by Judge Ochiltree in the opinion of the court), that on a note made payable to an administrator, he may sue in his own name. One of the judges, however (Judge Jack), dissented from the opinion of the court in that case; but three appear to have concurred in the decision, and the same question being again brought up, we have been induced to look into the authorities with more care than would otherwise have been deemed neeessary, on a question of so little apparent difficulty.

In the case of Hunter v. Postlethwaite, 10 Mart. 456, the plaintiff described himself as executor, in a suit to compel the performance of a contract made with him in that name, and the court held that the plaintiff need not show his authority to sue as executor; that he might have maintained the action in his own name; and Martin, J., says: “his calling himself executor is a mere matter of description, for he sues on a contract made by himself, and not for a right which once existed in his testator.” In Urquhart's Executors, v. Taylor, 5 Mart. 200, where suit was brought on promissory notes, given by the defendant to the plaintiffs as executors, this question was presented, and the court decided that, as the promise was to the plaintiffs, though as executors and for the benefit of the estate, they might have brought the suit in their own names, and that the words “ executors” of, etc., were only a description of the persons of the plaintiffs.

The case of Waldsmith v. Waldsmith, 2 Ham. (Ohio) 156, was an action of general indebtitatus assumpsit, in which the plaintiffs claimed as heirs, and charged the defendants as administrators of C. Waldsmith. In the opinion of the court, delivered in bank, by Judge Burnet, the English authorities upon this question are examined and reviewed, and the judge says, “the words ‘ as administrators,’ in the writ and declaration, may be considered as descriptive of the persons sued, and not of the character in which they are sued, or they may be treated as surplusage.” The reason for this opinion seems equally applicable to plaintiffs, when so described, and the authorities adduced in its support will be found quite pertinent to our present inquiry.

In Willis v. Lewis, Ld. Raym. 1215, which was an action by an executrix, on a promise made to herself as executrix; on motion in arrest of judgment, the court decided, that the declaration being grounded on a promise to the executrix...