Phinny v. Warren

52 Iowa 332

• Court: Supreme Court of Iowa
• Decided: October 28, 1879
• Status: Published

Opinions

Adams, J.

, „ mtafiteatorls promissory note. ^ The defendant insists that the plaintiffs have no remedy at law because there has been no administration, and no distribution, and no remedy in equity because there is no ground of equitable jurisdic-. tion. If the time had not expired within which an administrator might be appointed, it would seem to be certain that the action could not be maintained. Haines v. Harris, 33 Iowa, 516. But it is shown that the statutory period has expired and that no administrator can be appointed. "Whether the heirs can now be regarded as holding the legal title to the note we need not determine. They acquired an interest in it at the death of the intestate, subject only to such rights as an administrator might have if one should be appointed. Perryman v. Green, 39 Ala., 133; Thompson v. Thomas, 30 Miss., 152. As no administrator can now be appointed, it appears to us that their interest is subject to nothing. Whatever obstacle, then, there might have been at one time to their maintaining an action, it has ceased to exist.

The amount of personal property in this state which has not been administered upon, and never can be, is doubtless very large. It would do incalculable mischief to adopt a rule ■which would prevent the heirs or their vendees from maintaining an action in relation to such property. Whether the plaintiffs’ remedy was at law instead of equity we need not inquire. The defendant does not complain that he was entitled to a trial by ordinary proceedings of which he has been ■wrongfully deprived. We think the judgment must be

Affirmed.