Higdon v. Beck ( 1873 )

Opinion by

Judge Lindsay:

It appears from the original petition that appellee, Martha I. Beck is the daughter of Garrett and Parmelia .Potter, and that Martha Browne is their granddaughter. From the amended petition it appears that Garrett Potter, the father and grandfather, was alive at the time the original petition was filed. Such being the case, he was entitled, as surviving husband, to the entire personal estate of his deceased wife, Parmelia, and as heir at law of the whole estate of his deceased son, Isaiah Potter. Hence when this action was commenced, neither Martha I. Beck nor Martha Browne had any claim against Higdon, the administrator of Par-melia and Isaiah Potter. Nor did the subsequent death of their ancestor, Garrett Potter, invest them with any such right.

R. Rodes, for appellant. J. P. Bates, for appellee.

His claim against Higdon passed to his personal representative, and should be asserted by such representative.

If there had been no administration upon his estate, the fault rests with his creditors and heirs at law. Such being the -case, only the heirs can not immediately, upon his death, sue in their own name to recover debts due to him while alive.

Judgment reversed and cause remanded with instructions to dismiss appellee’s original and amended petitions.

The judgment for damages rendered upon-the dismissal of the appeal granted by the circuit court can not now be disturbed.