The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-11-12
DEBTS 10 DEAD MEN
MUST NOT BE PAID UNTIL AN AD-
MINIsTRAT0R Is APPOINTED.

Heirs Must Go into the Probate Court II
They Desire Justice-Points Brought
Out In an Opinion by Judge Cole in a
Case where the Brother of Dead Man
Tried to Collect on q Promissory Note
without First Being Made Administra-
tor-Case is Reversed-Came Up on Err
Tor from sumner Cocnty.
If you think Of dying the only way 10
keep your heirs out of court is to APP
point an executor beforehand, or what
is much easier, die penniless.
If you have $50 to transmit to your
heirs you might be tier give it to them
matter afterward it will cost more than
$50 for the heirs to get the $50.
This is brought by a case just decid-
ed by the Kansas court OF appeals. this
city. The case is from Sumner county.
Sometime about Jan. 1, 1887. Sumner
county man named George Presbury.
with another man named eager, Dor
rowed of z. B. Pickett s164, giving their
promissory note. Later Pickett died
without making will. A brother Neal
Pickett, and his father. ]. A. Pickett.
were his only heirs. After Pickett died
his brother Neal collected on the note
some money from Presbury. Shortly af-
terward Presbury refused to pay any
more until an administrator was ap-
pointed. The father, ]. n. Pickett, went
after Presbury and had him before a
justice of the peace. The justice of the
peace declared that Presbury must
whack up, administrator or no admins
traitor. Presbury took his case to the
district court. He was beaten there and
he appealed the case to this court Of ap-
peals, which declared that the justice
of the peace and the Sumner county
court were wrong and Presbury does
not have to pay the money until the ad-
ministrator is appointed.
Judge Cole in rendering the opinion
says: "a number of alleged errors are
urged in this case. but as is conceded by
counsel for both parties they all tend
to the one point, namely: Whether the
sole heir of a deceased person can main
tain an action of this character kithout
am administrator being had upon the es-
tate Of the deceased. While the amount
involved in the controversy is small and
the discloseS that the only defense to
the note sued upon Is that the action
cannot be maintained in the manner in
which it is brought, yet the question to
be decided is an important one. Section
27S5 general statutes, 1889, provides:
That upon the decease of any inhabi-
tant of this state letters testamentary
or letters of administration on his es-
ate shall beg ranted by the probate
cour of the county in which the deceased
was an inhabitant or resident at the
time of his death
Section 4103 general statutes Of 1889,
being section 26 of the code of civil pro-
cedure, provides: Every action must
be prosecuted in the name OF the real
party in interest except as otherwise
provided in section 2S.' Section % pro-
vides: an executor, administrator,
guardian, trustee of an express trust,
a person with whom, or in whose name.
a contract is made for the benefit of
another, or person expressly anthoriz-
lied by statute may bring an action
without Joining with him the person for
whose benefit it is prosecuted
1T is obvious from the first of these
sections that the legislatu intended
to provide a manner for the settle
ment of the estate of a deceased per-
son and that section in connection with
the succeeding ones upon the subject
provide the only manner in which a
legal settlement of such an estate can
be made"
Further along Judge Cole says: "Un-
less court having the power to pass
upon the question has determined who
are the parties to whom the estate
should be distributed, the risk of ascer-
tanning such parties is imposed upon
anyone indebted to the estate with the
attendant danger of involving the deb
tor in litigation with rival claimants.
This case presents an Illustration of
that fact. The record discloses evil
dence tending to show that the plaintiff
in error Presbury) was willing to pay
the note in suit but that he understood
1t was claimed by both the father and
brother of the deceased
The judgment of the dierict court Is
reversed and the cause rendered for
further proceedings.