Wing v. Andrews , 59 Me. 505 ( 1871 )

Appleton, C. J.

The note in suit is payable to Jabez Wing, or order. Upon his decease, the plaintiff,'his father, was appointed administrator.

The question presented for determination is whether the plaintiff is a nominal party within the third clause of R. S. 1871, c. 82, §87. '

If the note belonged to the estate of the son, the plaintiff cannot be regarded as a nominal party, unless we hold all administrators nominal parties, and it is not pretended that such is the law. The money, when collected, would belong to the estate which the plaintiff is administering. It would be a part of its assets to be administered according to law. It may be needed for the payment of debts. If it constitutes the whole estate, a part of it would be required to meet the charges of administration and funeral expenses. Upon the settlement of the estate, it may, in part or in whole, by the final order of distribution, become the father’s as heir at law. But until such order, the plaintiff holds the note or the money received therefrom in his representative capacity, and not as heir at law. Unless, therefore, we hold all administrators as nominal parties, the present plaintiff is not one, if the note in question was part of the estate of the son.

It is argued that the title to the note was in the father before the death of the son. But such is not shown to be the case. It was not indorsed by the son. It is not proved to have been delivered by him to the father. Simon Wing, in his testimony,-speaking of the father’s ownership, manifestly refers to him as holding the property as administrator. “ He is administrator of my brother’s ■estate. He owns the property left by my brother.” There is no evidence tending to show that the father had in any way acquired .-a title to the note before the death of the son. Nor does the do-fentlani, in bis plea, allege any such fact. It asserts title to have been in Simon Wing, a fact wbicli the entire evidence disproves.

It seems that Simon Wing, having received the note for collection, indorsed the name of the plaintiff thereon, and commenced a suit in his own name. If the indorsement was unauthorized, it would be of no avail. If sanctioned by the father, the legal title would be in the indorsee, but the equitable title would be in the plaintiff, for whose benefit the indorser undertook its collection. If the money had been collected by Simon Wing, it would have belonged to the father as administrator, and must have been accounted for by him as part of the assets of the estate.

Instead of collecting it, Simon Wing struck out the indorsement and delivered the plaintiff his own note, thus reinvesting him with the legal title, the equitable having remained in him. The note is, therefore, as much a part of the estate as it ever was, and the plaintiff, in his representative capacity, is bound to account for it as such.

The testimony upon which the defense rests is that the plaintiff’s intestate, without the knowledge or consent of Steward, the surety for a valuable consideration, extended the time of payment of the note. The evidence proposed is the testimony of the defendant as to a contract to which the deceased was a party and as to which his statements cannot be had. To guard against this, the legislature specially enacted that where one of the parties sues as executor or administrator, the adverse party is not a witness, except when the party suing in a representative capacity is a nominal party, that is, when the funds derivable from tlie suit do not belong to the estate, hut do belong to some individual to whom the demand in suit had been assigned, and who is compelled, by the rules of law, to prosecute in the name of the administrator. But this plaintiff is not a nominal one, for he prosecutes for the benefit of the estate, and it matters not whether the funds collected belong to the estate for the payment of its debts or to him as the heir at law of his son.

The defaulted principal is not a witness at common law. By its rules his position as party to the record precludes his testifying, notwithstanding he may be without interest. Gilman v. Bowden, 12 Maine, 412; Kennedy v. Niles, 14 Maine, 54.

Judgment for plaintiff.

Kent, Walton,- Barrows, and Dan forth, JJ., concurred.