[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 725 The note being payable to husband and wife jointly, belonged to the wife as survivor. (Borst v. Spelman, 4 N.Y., 288;Draper v. Jackson, 16 Mass., 480.) This is so, though the consideration was paid by the husband, if there are assets sufficient without this money to pay defendants. (Christ'sHospital v. Budgin, 2 Vern., 683; The R.C. Orphan Asylum v.Strain, 2 Brad. R., 34; Scott v. Simes, 10 Bosw., 314;Dummer v. Pitcher, 5 Simons, 35; and other analogous cases;Schoonmaker v. Elmendorf, 10 J., 49; Craig v. Craig, 3 Barb. Ch. R., 78; 4 Bright's Husb. and Wife, by Lockwood, 32; and cases cited.)
Taking this note in the name of himself and wife shows that the husband intended thereby to give it to her, in case she survived him, and a delivery to her was unnecessary to perfect the gift.
Assuming this to be so, yet during the life of the husband the note is subject to his control and disposition. The wife has no legal interest in it until his decease.
In this case the defendant offered to prove substantially that, by an arrangement between the husband and wife, he had *Page 727 given to her by his will a legacy of more than double the amount of this note, in lieu of the note; that that contract or arrangement had been fully executed on his part, and that after his decease she had executed it on her part by receipting the note to the committee of her deceased husband as part of the assets of his estate; by delivering the note to the appraisers of his estate as a part of his assets, and by her placing it upon the inventory as belonging to his estate.
This testimony was objected to, and it was rejected by the court, not upon the ground that it did not show that the plaintiff, the surviving wife, was not the owner of the note, but that she could maintain this action though she was not the owner. "That the defendant was not in a position to set up the legal or equitable rights of the estate of his father, J.H. Sanford, to the note, or to its proceeds; that such rights could only be determined where all the proper parties were before the court."
There were some other objections and positions taken at the trial, but they are not urged here.
The Code declares that "every action must be prosecuted in the name of the real party in interest," except as specified in section 113. (Code, § 111.) It is not claimed that the plaintiff comes within the exception of being a trustee of an express trust. Hence it is not necessary to refer to that.
How, then, can this action be maintained in the name of this plaintiff, when she does not own the note — when she is not the "real party in interest?"
The plaintiff insists that the defendant has no right to question the plaintiff's title; that so long as he owes the demand, and no other person sets up any claim or forbids the payment, he is bound to pay the person who has the note in possession, so long as he does not hold it in bad faith.
The City Bk. of N. Haven v. Perkins (29 N.Y., 568) gives some sanction to this doctrine, in the language of the judge delivering the opinion. That case and the later case of Brown v. Penfield (36 N.Y., 475) were undoubtedly well decided. They are in entire harmony with the Code. For *Page 728 any dicta going beyond the cases, no one is responsible except the learned judges who made them.
They referred to a case in 15 Wendell, 640, of Gage v.Kendall, for the rule as to the person who might maintain the action, and that if he were not the owner he might sue as trustee for the real owner. But this had no application to the Code, which prescribes the present governing rule. That is, he must be "the real party in interest," except in the excepted cases.
It is insisted here that the defendant did not offer to prove that the plaintiff accepted the provision made for her in the will in lieu of the note. He did not make that offer in terms. But the testimony he did offer, that the provision was made in lieu of the note, after consulting with the plaintiff and with her knowledge and consent, and that after his death she treated the note in every respect as belonging to the estate of her husband and not to herself, is strong evidence of her acceptance of that provision; strong evidence that the note then was the property of the estate and not hers. It would have warranted a verdict to that effect, if left uncontradicted. Hence the offer was sufficient. No question of the solvency of the estate was made at the trial. Besides, insolvency is not to be presumed.
It is said that the defendant owes this note, and why should he not pay it to the plaintiff?
But he owes it to the estate of his father, and not to the plaintiff, and he represents that estate as much as the plaintiff. This is part of the assets of the estate. Why are they not as safe in the hands of one executor as of another? It is not pretended they are not. Why has he not as much right to hold them as either of the other representatives? It may be that his interest in the estate is much larger than hers. Why, then, should she insist upon taking this money into her hands?
If this money be needed for the proper settlement of the estate, and the defendant refuses to apply it, his co-executors could compel him to pay the note by application to equity *Page 729 powers of the court, and then the court could properly apply the money. (Smith v. Lawrence, 11 Paige, 206-209.)
Judgment reversed. New trial ordered, costs to abide the event.
All concur, except ALLEN, J., not voting.
Judgment reversed and a new trial granted.