Fox v. Van Norman , 11 Kan. 214 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

Plaintiff sued the widow of Peter Van Norman on some promissory notes executed by him in his lifetime, and claimed a personal judgment against her. Did the petition state facts sufficient to constitute a cause of action? We think not. The defendant did not sign the notes, and is not therefore responsible as maker. It is alleged that she is the sole heir of Peter Van Norman. But that creates no liability. The debts of a man die with him, except so far as his own property will satisfy them. There is no transfer of obligation to the heir. It is also alleged that she has in her possession, and claims to own, personal property which belonged to decedent sufficient to pay this claim, and which descended to her subject to the payment of all just debts. In other words, plaintiff seeks to charge her as executrix de son tort of her husband. The executor de son tort is a person of whom the English law books frequently speak. He was defined to be a person who without authority from the deceased, or the ordinary, does such acts as belong to the office of an executor, or administrator. 4 Bacon’s Abr., 26, B. 3, § 1. He is one who assumed to act as executor and settle up an estate without any authority. In general, he was liable.only for the value of the assets which came to his hands, and in such cases when a recovery was had against him the judgment was de bonis testatoris. Toller on Exr’s, 473; 4 Bacon Abr., 32, B. 3, §3. Though if he pleaded ne unques executor, and the issue was found againsf him, the judgment was for the full amount of the debt without reference to the value of the assets in his hands. Bacon Abr., 30, 32, B. 3, §§ 2, 3. The judgment was executed for the sole benefit of the creditor suing, to the exclusion of all the other creditors. Toller’s Ex’rs, 472, and note 1. Hence in many of the states of the Union in which the statutes have attempted to place creditors upon an equality in the matter of payment, the courts have declared that there can be no such person as an executor de son tort in the sense of the English law. Barasien v. Odenn, 17 Ark., 123; Rust, Exr., v. Wetherington, 17 Ark., 129; Dixon v. Cassell, 5 Ohio, 533; Ausley v. Baker, 14 Texas, 607; Green v. Rugely, 23 Texas, 539. In 2 Redfield on Wills, 13, note 6, the learned author says, speaking of this subject:-“We have devoted no space to the topic in this work because it is so nearly obsolete in the American courts that it would seem unjust to the profession to tax them with the expense of what is only speculatively useful, when so much which is practical has to be omitted.” Our statutes establish a rule of uniformity in the payment of debts. Gen. Stat., 448, § 80. They have provided means for compelling the delivery of any property belonging to a decedent to his personal representatives. Gen. Stat., 471, §§196, 200. It is therefore but a simple application of the reasoning and authority of the decisions cited to our own statutes, to hold that under them no such person exists as an executor de son tort with the liabilities which attached at common law. If a person have property belonging to an estate its delivery to the administrator or executor can be compelled by any creditor, or other person interested, in the manner prescribed in the sections quoted. It would be strange if one creditor could compel a delivery of the property to the administrator, and another obtain judgment for its value.

Another question is discussed by counsel. It is insisted that the defendant is too' late with her objection. She filed no answer or demurrer, but simply objected to judgment when the case was called for trial. This was sufficient. Zane v. Zane, 5 Kas., 134. The judgment of the district court will be affirmed.

All the Justices concurring.