In re Fussell's Estate

• Decision Date: 16 December 1905
• Citation: 105 N.W. 503,129 Iowa 498
• Parties: In re Estate of RACHEL FUSSELL, deceased
• Court: Iowa Supreme Court

105 N.W. 503

129 Iowa 498

In re Estate of RACHEL FUSSELL, deceased

Supreme Court of Iowa, Des Moines

December 16, 1905^[*]

Appeal from Fayette District Court.-- HON. L. E. FELLOWS, Judge.

APPLICATION of the executors of the estate of Rachel Fussell, deceased for an order directing the sale of certain real estate. It was denied, and the executors appeal.

Reversed.

Hancock & Birss, for appellants.

Jay Cook and Clements & Clements, for appellee.

OPINION

LADD J.--

Rachel Fussell died testate December 15, 1902. Her will bearing date January 24, 1898, was admitted to probate, and Martin H. and Horton V. Fussell appointed executors. The fifth clause devised certain real estate to her daughter, Dorcas Stansberry, "to have and to hold to her the said Dorcas Stansberry during her natural life, with remainder to her children, share and share alike. Provided however, that in case the two promissory notes held and owned by me against the said Dorcas Stansberry and L. L. Stansberry shall not have been paid within one year after my decease, then I authorize and empower my said executors to sell the premises hereinbefore described, in River addition to Fayette, and the half of the vacated street last described, and from the proceeds thereof to pay the principal and interest that shall then be due on said notes (whether said notes shall then be barred by the statutes of limitation or not), and the surplus, if any, shall be loaned by such executors, and the interest paid to said Dorcas Stansberry during her lifetime, and the remainder shall be the property of her children at her death, share and share alike."

The notes referred to were executed January 27, 1892, for $ 224 each, with interest, the one payable February 1, 1893, and the other a year later. The devisee failed to make payment within the year after testatrix's death, and this action was begun in which the executors prayed for an order to sell the property as directed by the will. Thereupon, it was stipulated that Mrs. Stansberry had been adjudged a bankrupt September 20, 1902, and was discharged as such in January or February, 1903. Contrary to the ruling of the district court this furnished no defense. The discharge in bankruptcy did not operate as an extinguishment of the debt; it merely destroyed the remedy by enabling the debtor to plead the discharge in bar. Bush v. Stanley, 122 Ill. 406 (13 N.E. 249); Farmers & Mechanics Bank v. Flint, 17 Vt. 508 (44 Am. Dec. 351). See collection of cases in 16 Am. & Eng. Ency. of Law (2d Ed.) 789. While the legal obligation to pay is gone, the moral obligation remained precisely as before, for the debt is still unpaid, and constituted a sufficient consideration to support a new promise to pay the same as in the case of a debt barred by the statute of limitations. This being true, the notes of the devisee,...