Weston v. Weston , 35 Me. 360 ( 1853 )

Wells, J.

— The note in suit is payable to William Weston, Jr. the plaintiff’s intestate, who with his mother, then Mary Weston, now Mary Horn, was administrator upon the estate of his father, William Weston.

It is said by the defendant, that the note in suit was inventoried as a part of the estate of William Weston. The note contained in the inventory is represented as bearing date in June, whereas the note in suit is dated in January, but in other respects they are alike. But in the settlement of the account of Wm. Weston, jr. in the probate office, in April, 1845, he charges the estate of his father with a note corresponding in date and in other particulars with the one in suit. It also appears, that the amount of the note was allowed in the settlement of the administration account by deducting it from his own note belonging to his father’s estate. This evidence is sufficient to show, that the note was the property of his father. The plaintiff represents the son and is bound by his admissions.

The note being the property of the father, the administrator of the son has no control over it, and can maintain no action upon it, except by the consent of the representatives of the father.

If the plaintiff’s intestate and his mother charged themselves in their administration account with the note against the defendant, when they had not collected it, it might thereby become their property. In their second account they do so charge themselves with the amount of the note, stating that it is still due. If the payment of the note under such circumstances would trausfer the title to it, and authorize the collection of it in the name of the plaintiff, the interest in it would belong to the mother and son, their property in it accruing to them as individuals, in consequence of the payment made by them. It would become the property of both, and either of them could receive payment of it, or discharge it. Mrs. Horn and her husband, Thomas Horn, have admitted by an instrument under seal, that the note was paid by the defendant to her late husband, William Weston, and they discharged the defendant from it. This they had a right to do, if she was a joint owner of the note with the plaintiff’s intestate, and such discharge would put an end to the action.

According to the agreement of the parties, judgment is to be rendered for the defendant.

Shepley, C. J., and Howard and Hathaway, J. J., concurred.