Maraman v. Trunnell , 60 Ky. 146 ( 1860 )

CHIEF JUSTICE STITES

delivered the opinion of the court:

As those appeals involve the same question, and are between the same parties, they will be considered and disposed of together.

In 1857 Henry O. Maraman made several promissory notes, payable to ‘'James Caldwell, administrator of F. Maraman. deceased.” Caldwell died without collecting the notes, or fully administering upon the estate of his intestate. By an order of the Bullitt county court, the estate of F. Maraman, deceased, not administered, was committed to the charge oí Trunnell, the sheriff of said county, as administrator de bonis non, and the said notes having come to his hands as assets of the estate of F. Maraman, deceased, he brought suits on them in his name, as administrator de bonis non, against Henry O. Maraman, setting forth in Ilia petitions the foregoing facts, and also alleging that the maker of the notes was the administrator of James Caldwell, deceased, the payee.

Demurrers were entered to both petitions, and overruled, and judgments rendered for want of any further defense; and whether the actions were properly maintainable in Trunnell’s name, as administrator de bonis non, is the only point to be determined.

The Revised Statutes, (Stanton's edition, vol. 1, page 500,) provide that, in cases where estates are committed to the hands of the sheriff, “he shall, by virtue of his office and the order of court, be the administrator or administrator, de bonis non of the decedent,” and shall have ail the rights and powers, and shall be bound to perform all the duties of such administrator.

It is insisted, however, that inasmuch as the notes were made payable to Caldwell, the right of action existed alone in his administrator.

This objection, though plausible, is not well taken. The petitions distinctly aver that the notes sued on were assets belonging to the estate of F. Maraman, deceased, and, in the absence ol any denial, this averment must be regarded as true. The notes being assets of said estate, were properly in the hands of the sheriff, and he being the real party in interest could alone maintain the action. (Civil Code, sec. 30.)

The fact that the notes were made payable to Caldwell, “administrator of F. Maraman, deceased,” t'ioughprima facie evidence of his right to them, was by no means conclusive. They did not thereby become his property. He might have made them so by charging himself, or by being charged in a settlement, with them. The rule may be now regarded as permanently established, that notes executed to an administrator as such may, if uncollected or undisposed of by him in his life time, become assets in the hands, either of his own personal •representative or of the administrator de bonis, non, the one nr the other-^-should there he a conflict between th.ern — being enstirled according to the result of the inquiry, whether the first administrator had become beneficially entitled to them as a .creditor of bis intestate, or by having charged himself with them in a settlement of the estate. (Williams vs. Collins, 1 B. Mon., 62; Jones vs. Everman, 15 B. Mon., 633.)

Here, as we have seen, the allegations of the petitions place ,beyond all controversy the right of the administrator de bonis non to the notes in question, as assets of the estate of his intestate, and consequently exclude the right of appellant as •administrator of the payee. Having no right to them as ad^ ministrator of Caldwell, and having failed to present any defense to the petitions, the appellant was bound, as the maker of the notes, for their payment to the party who had thus shown himself entitled to collect them.

The judgments are bolh affirmed.