Neubrecht v. Santmeyer

Citations

• 50 Ill. 74

Syllabus

<p>1. Witness—competency—of a divorced wife in a suit against her former husband. The rule is well settled, that where either husband or wife is a party to an action, the other is incompetent as a witness, in either civil or criminal proceedings; and the rule is adhered to even after the marriage tie has been dissolved by a divorce for adultery.</p> <p>2. Administrator—of the investiture of the legal estate. The personal assets of an estate become legally vested in the administrator, and the heirs can not maintain an action at law, in their own right, for any portion of such personal estate, until an order of court for distribution has been obtained.</p> <p>3. So, where an administratrix, in that capacity, loans money belonging to the estate, to her husband, by a subsequent marriage, for the use and benefit of her children by the former husband, until the youngest shall have reached majority, such children cannot maintain an action for the recovery of the money so loaned, upon the majority of the youngest, until after an order of court for distribution has been obtained; until then the legal estate vests in the adminisistratrix, for the purposes of distribution.</p> <p>4. Same—against whom the action will lie. Upon an order of court for distribution, the legal estate vests in the children, and an action will lie against the administratrix for a devastavit, or they may apply for an order of court compelling distribution.</p> <p>6. Contracts—of a promise to a third person. The promise of the husband to the administratrix, to pay the money to the children upon the majority of the youngest, is not a promise made to them, or either of them, such as to authorize a recovery in an action instituted by them jointly or severally, against the husband. The remedy is against the administratrix.</p>