Thacker v. Lindahl (48 S.W.2d 588, 1932)

HARYEY, P. J.

This suit Was brought in the district court of Willacy county, by the plaintiff in error, S. W. Thacker, who resides in Minnesota, against Alvin A. Lindahl and Ethel G. Lin-dahl, who reside in Willacy county, in this state. The suit is for recovery, by Thacker, in his own name, on certain promissory notes executed by the Lindahls, payable to tbe order of one L. E. Gesell. The notes were by the latter transferred, under his indorsement, without recourse, to Barbara Joos, of Alma, Wis. Thereafter, while still owning the notes, Barbara Joos died, testate. Her will was duly probated in Wisconsin; administration of her estate was opened there, and John A. Tritsch, of that state, is the duly appointed executor. No administration of the estate has ever been opened in Texas. One of the notes bears the following indorsement: “Pay to the order of S. W. Thacker” (signed) “John A. Tritsch, as executor of the will of Barbara Joos, deceased.” The in-dorsements of the executor on the other notes are variously worded, but, so far as material here, are to the same effect as the indorsement set out above. In their answer to the suit, the defendants set up a plea in abatement, among other matters of defense, on the ground that the notes belonged to the estate of Barbara Joos, deceased, and that Thacker merely held them for collection, and therefore did not have capacity to sue on them in this state. In a supplemental petition, Thacker made the following admission: “Comes now the plaintiff and admits that he holds the notes, sued on in plaintiff’s first amended original petition by restrictive in-dorsement from the executor of the estate of Barbara Joos, deceased, and that he holds the legal title for collection only, as trustee for the estate of Barbara Joos, deceased, ant\ that the equitable and beneficial title is owned by the estate of Barbara Joos, deceased. * ⅜ * ”

The trial court overruled the plea in abatement, and upon a hearing of the case, on the merits, rendered judgment for Thacker fo