Priest & Benson v. Watkins

Headnote

Where a note belonging to the estate of an intestate was paid to his widow, who subsequently united with another in taking out letters of administration, and they then brought an action upon the note in their representative capacity; held that, notwithstanding the provisions of the revised statutes as to executors de son tort, the letters related back to the time of the intestate's death, and therefore the payment to the widow was a bar to the action.

Assumpsit, tried at the Chemung circuit in October, 1841, before Monell, C. Judge. The plaintiffs were administrators of the estate of Dodo Benson deceased, and as such, claimed to recover the amount of a promissory note given

by "the defendant to the intestate during his life. After his death, thé déféúdant' paid the note to Lucina Benson, the intestate’s widow, in whose hands it then was. This was prior to the taking out of letters of administration. Afterwards letters were taken out by the widow and Benjamin Priest, the plaintiffs, who, at the trial, insisted that under the revised statutes, (2 R. S. 81, § 60/ id. 449, § 17, and id. 77, § 42,) such letters do not relate back, as formerly, to the- time of the intestate’s death, and therefore it could not be said that the payment to the widow was payment to an administrator. The circuit judge held otherwise, and nonsuited the plaintiffs, who now moved to'set aside the nonsuit, and for a new trial on a case.