account for such estate, and the court may examine and allow his account, and award a reasonable sum out of the estate for his services and expenses.82

1119. Comments on statutes-The statutes governing partition in the probate court are very faulty and might well be repealed altogether. They are not much resorted to as the procedure is cumbersome and uncertain. Usually the beneficiaries of an estate make partition by agreement after a final decree of distribution. If they are unable to agree it is usual and more satisfactory to resort to the statutory action in the district court.

ACTIONS BY AND AGAINST REPRESENTATIVES

1120. Representative may sue in his own name-An executor or administrator may sue in his own name without joining the heirs or other beneficiaries of the estate.

83

86

1121. On what causes of action representative may sue-In generalAn executor or administrator may sue on any cause of action, either ex contractu or ex delicto, existing in favor of the decedent at the time of his death, or upon which he might sue if living, except causes of action arising out of injury to the person.84 He may maintain an action to recover possession of the real property of the decedent or to quiet title thereto.85 He may maintain an action to recover possession of the personal property of the decedent or other assets of the estate.s He may set aside fraudulent conveyances of the decedent. He may maintain an action in the nature of trover for a conversion of personal property constituting assets of the estate, irrespective of whether the estate is indebted or not.88 He may maintain replevin for personal property belonging to the estate. What shall be done with the property in the course of administration cannot be litigated in such action. He may sue on a bond to pay money to the decedent "on demand” though the decedent did not make demand.00 He may sue on a note payable to the decedent though another has a beneficial interest therein.o1 He may sue on a covenant of seizin running to the decedent.92 He may sue on

82 G. S. 1913, § 7415.

83 G. S. 1913, § 7676; Miller v. Hoberg, 22 Minn. 249; Cooper v. Hayward, 71 Minn. 374, 74 N. W. 152; Hamilton v. McIndoo, 81 Minn. 324, 84 N. W. 118. 84 G. S. 1913, § 8174.

85 See § 738.

86 See $$ 735, 858.

87 See § 865.

88 Bergh v. Calmenson, 136 Minn. 322, 162 N. W. 353; Horton v. Jack, 115 Cal. 29, 46 Pac. 920. See Kemp v. Holz, 149

Minn. 237, 183 N. W. 287 (trover held not to lie); § 1122.

89 Wiswell v. Wiswell, 35 Minn. 371, 29 N. W. 166. See Kemp v. Holz, 149 Minn. 237, 183 N. W. 287 (replevin held not to lie).

90 Portner v. Wilfahrt, 85 Minn. 73, 88 N. W. 418.

91 Cooper v. Hayward, 67 Minn. 92, 69 N. W. 638; Id., 71 Minn. 374, 74 N. W. 152.

92 Lowry v. Tilleny, 31 Minn. 500, 18 N. W. 452.

a promise to decedent to pay a mortgage debt or reconvey.93 He may sue for the recovery of money loaned by the decedent."* He may sue for the purchase price of land sold by the decedent though the sole heir of the decedent has conveyed the land to the purchaser under the contract and received the purchase price." He may maintain an action to recover royalties under a mining lease executed by the decedent, accruing during the year for redemption from a sale on foreclosure of a mortgage executed by the decedent." He cannot maintain an action for trespass upon real property committed after the death of the decedent unless he has first asserted his right under the statute by taking possession of such property. But, if he takes possession of such property he may then maintain an action for a trespass committed thereon before he took possession and after the death of the decedent. In such case his possession, as well as his letters of administration, relate back to the death of the decedent. If the land is vacant the bringing of an action is equivalent to taking possession. The amount of his recovery is not limited to the amount necessary to pay debts. He is entitled to recover the full amount of the damage caused by the trespass and holds it as assets of the estate. If the heirs or devisees have already commenced an action the representative has a right to be substituted therein when he takes possession. If they have recovered before he takes possession he is entitled to the proceeds if needed for purposes of administration.97 He may maintain an action to set aside a contract for the sale of real property made by the decedent on the ground of mental incompetency. It has been held that a representative could not maintain replevin or trover to recover certain assets held through a fraudulent transfer, his exclusive remedy being an action under G. S. 1913, § 7131.99 He may maintain an action to cancel a contract for the sale of real estate and to quiet title thereto.' He may demand of a corporation stock therein to which the decedent was entitled and maintain an action for damages for its failure to issue the stock. He may maintain an action to impress a trust upon real property purchased with money fraudulently obtained from his decedent. If a representative of a surety pays the principal debt he may maintain an action in his own name against the principal debtor for repayment, or an action against a co-surety for

98

93 Connolly v. Connolly, 26 Minn. 350, 4 N. W. 233.

94 Chamberlain v. Tiner, 31 Minn. 371, 18 N. W. 97.

95 Vachon v. Nichols-Chisholm Lumber Co., 126 Minn. 303, 144 N. W. 223, 148 N. W. 288.

96 Orr v. Bennett, 135 Minn. 443, 161 N. W. 165.

97 Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197; Id., 32 Minn. 81, 19 N. W.

98 Wheeler v. McKeon, 137 Minn. 92, 162 N. W. 1070. See 1 A. L. R. 1517. 99 Kemp v. Holz, 149 Minn. 237, 183 N. W. 287.

1 Smith v. Stiles, 68 Wash. 345, 123 Pac. 448.

2 Coray v. Perry Irrigation Co., 50 Utah 70, 166 Pac. 672.

3 Morris v. Vyse, 154 Mich. 253, 117 N. W. 639.

contribution.

He cannot sue to recover money payable to the heirs of the decedent. He cannot maintain an action for the purpose of procuring the issue of an execution upon a judgment recovered in the district court by the decedent. His remedy is by motion in the action in which the judgment was rendered. He cannot maintain an action to set aside a transfer of personal property made in anticipation of death by the decedent, if the estate is not prejudiced thereby.' He cannot maintain partition proceedings. He cannot maintain trespass if he has surrendered possession."

11

1122. In what capacity representative must sue-Upon causes of action belonging to him in his representative capacity a representative must sue in that capacity and not individually.10 It is the general rule that upon all causes of action, whether on contract or for tort, accruing during the life of the decedent, a representative must sue in his representative capacity. Upon causes of action growing out of the contracts of the representative in relation to the estate he may sue either in his representative or individual capacity whether the contract purports to be made with him in his individual or representative capacity.12 A representative may maintain trover for a conversion of the property of the estate occurring after the death of the decedent, whether before or after his appointment and whether he ever had actual possession or not, either in his individual or representative capacity. If allegations of representative capacity are made in the complaint they may be disregarded as surplusage.13 The same rule applies to replevin. A representative may maintain replevin for property of the estate either in his representative or individual capacity. Although the proper form of C. J. 732; 8 Ency. Pl. & Pr. 658; Ann. Cas. 1916E, 115.

4 De Paris v. Wilmington Trust Co. (Del.) 104 Atl. 1352.

5 Bombash v. Supreme Sitting, 42 Minn. 241, 44 N. W. 12. See Vachon v. NicholsChisholm Lumber Co., 126 Minn. 303, 144 N. W. 223, 148 N. W. 288.

6 Lough v. Pitman, 25 Minn. 120.

7 Ober v. Brewster, 113 Minn. 388, 129 N. W. 776.

s Owings v. Owings, 150 Mich. 609, 114 N. W. 393; Ryer v. Fletcher Ryer Co., 126 Cal. 482, 58 Pac. 908.

• Plumley's Admr. v. Plumley, 84 Vt. 286, 79 Atl. 45.

10 Hamilton v. McIndoo, 81 Minn. 324, 84 N. W. 118 (action by administrator de bonis non on a foreign judgment rendered in his favor as administrator).

11 Kent v. Bothwell, 152 Mass. 341, 25 N. E. 721; Buckland v. Gallup, 105 N. Y. 453, 11 N. E. 843; Dunphy v. Callahan, 110 N. Y. S. 179; 18 Cyc. 874; 24

14

12 Bond v. Corbett, 2 Minn. 248 (209) (action for recovery of money of estate loaned by the representative); Morse v. King, 73 N. J. L. 548, 63 Atl. 986; Buckland v. Gallup, 105 N. Y. 453, 11 N. E. 843; 18 Cyc. 874; 24 C. J. 732; 8 Ency. Pl. & Pr. 658; Woerner, Am. Law of Adm. (2 ed.) § 303.

13 Kent v. Bothwell, 152 Mass. 341, 25 N. E. 721; Buckland v. Gallup, 105 N. Y. 453, 11 N. E. 843; Knox v. Bigelow, 15 Wis. 455; Dunphy v. Callahan, 110 N. Y. S. 179; Reichard v. Hutton, 133 N. Y. S. 44; Leavitt v. Scholes Co., 210 N. Y. 107, 103 N. E. 965; Munch v. Williams, 24 Cal. 167; Jahns v. Nolting, 29 Cal. 507; Ham v. Henderson, 50 Cal. 367; Horton v. Jack, 115 Cal. 29, 46 Pac. 920; 18 Cyc. 879.

14 Kent v. Bothwell, 152 Mass. 341, 25 N. E. 721; 18 Cyc. 879.

action on a cause of action arising out of the administration of the estate is by the representative in his individual capacity, basing his right and title on his letters of administration or letters testamentary, yet he may sue either individually or in his representative capacity, since, no matter in what capacity a recovery is had, it becomes assets of the estate for which he is accountable, and the same defences and remedies are available to the defendant whose liability will be discharged by the satisfaction of the recovery no matter in which form it may be had. The rule is otherwise in actions against representatives.15 Where property of an estate has been wrongly interfered with by a third party, though with the permission of the representative, thus making the representative liable on an accounting, the representative may sue for the wrong in his representative capacity.16 The entire record may be examined to determine in what capacity an action was brought and tried.1

1123. Against representatives-Statutes-An action will lie against a representative on any claim or cause of action against the decedent which survives and which cannot be proved and allowed against his estate in the probate court; otherwise if it can be so proved and allowed.18 No action at law shall lie against an executor or administrator for the recovery of money upon any demand against the decedent allowable by the probate court, and no claim against a decedent shall be a charge upon his estate unless presented to the probate court for allowance within five years after his death: Provided, that nothing in this section shall be construed as preventing an action to enforce a lien existing at the date of decedent's death, nor as, affecting the rights of a creditor to recover from the next of kin, legatees, or devisees to the extent of assets received.19 This statute has been held not to bar an action on the bond of a representative.20 There was a similar provision barring actions on claims not presented to commissioners under the former system.21 The "action" referred to in this statute is the proper action to be brought in

15 Leavitt v. Scholes Co., 210 N. Y. 107, 103 N. E. 965. See 24 C. J. 732.

16 Reichard v. Hutton, 133 N. Y. S. 44. 17 First Nat. Bank v. Shuler, 153 N. Y. 163, 172, 47 N. E. 262.

18 G. S. 1913, §§ 7323, 7326, 8174; Comstock v. Matthews, 55 Minn. 111, 56 N. W. 583 (action for trespass on real estate committed by decedent); Oswald v. Pillsbury, 61 Minn. 520, 63 N. W. 1072 (contingent claim arising on contract not provable in probate court-claim for contribution); Martz v. McMahon, 114 Minn. 34, 129 N. W. 1049 (contingent claim against surety on bond of an administrator not provable in probate court). As to what causes of action survive, see §

1125. As to what claims are provable in probate court, see §§ 881-935.

19 G. S. 1913, § 7326. See $ 883. As to what claims must be presented to the probate court, see §§ 881-935. As to what claims or causes of action survive, see § 1125.

20 Martz v. McMahon, 114 Minn. 34. 129 N. W. 1049.

21 Wilkinson v. Estate of Winne, 15 Minn. 159 (123); Commercial Bank v. Slater, 21 Minn. 172; Id., 21 Minn. 174; Bunnell v. Post, 25 Minn. 376, 380; Cummings v. Halsted, 26 Minn. 151, 1 N. W. 1052; Fern v. Leuthold, 39 Minn. 212, 39 N. W. 399.

a court of general jurisdiction.22 Where the maker of a note made a payment thereon to an agent of the payee who was not authorized to receive it and who was thereafter made administrator of the estate of the payee, it was held that the maker, to whom the note was given by the will of the payee, might recover the amount paid in an action against the representative. 23 Where a party to an action dies after verdict. against him and judgment is entered thereon after his death without his representative being substituted, an action will not lie on the judgment against the representative. The judgment is enforceable in the probate court.24

1124. In what capacity representatives must be sued-An executor or administrator must be sued in his representative capacity on all contracts made or obligations incurred, or torts committed by the decedent.25 An executor or administrator must be sued in his individual capacity on all contracts in relation to the estate made by him upon a new consideration though he purported to make them in his representative capacity.26 It is the general rule that an executor or administrator must be sued in his individual capacity for all torts committed by him, though they are committed in relation to the estate and it is benefited thereby.27 But where a representative wrongfully takes and treats as assets property which does not belong to the estate, he may probably be sued therefor in his representative capacity by the true owner.2 28 Where a representative takes possession of realty of the decedent under the statute ejectment will lie against him in his representative capacity.29 An executor cannot be sued personally on a judgment. recovered against him as executor in an action by a creditor of the testator.30 Replevin will lie against a representative in his individual capacity though he claims the property in his official capacity.31 In an action by a distributee for his distributive share, after final distribution, the representative should be sued in his individual capacity.32 An action will lie against a representative personally on a claim for funeral expenses if he has assets to pay it and refuses to pay it upon demand.33 An action will lie against a representative in his official capacity to establish a claim for funeral expenses, though they were not incurred by

22 State v. Probate Court, 103 Minn. 325, 330, 115 N. W. 173.

23 Braithwaite v. Bain, 66 Minn. 325, 69 N. W. 4.

24 Berkey v. Judd, 27 Minn. 475, 8 N. W. 383.

25 18 Cyc. 881; 24 C. J. 732.

26 18 Cyc. 881; 24 C. J. 739. See cases under § 733.

27 Fritz v. McGill, 31 Minn. 536, 18 N. W. 753; 18 Cyc. 883. See cases under § 765.

28 See § 765.

29 Pabst Brewing Co. v. Small, 83 Minn. 445, 86 N. W. 450.

30 Jenkins v. Wood, 140 Mass. 66, 2 N. E. 780.

81 Veader v. Veader, 89 N. J. L. 727, 99 Atl. 309. See 18 Cyc. 884.

32 Malone v. Davis, 67 Cal. 279, 7 Pac. 703; St. Mary's Hospital v. Perry, 152 Cal. 338, 92 Pac. 864. See 13 Ency. Pl. & Pr. 10; 18 Cyc. 884.

33 Dampier v. St. Paul Trust Co., 46 Minn. 526, 49 N. W. 286; Barrett v. Heim (Minn.) 188 N. W. 207.