Biemuller v. Schneider

Ritchie, J., delivered the opinion of the Court. The appellant, as plaintiff below, brought his action of replevin to recover possession of certain horses, cows and other personal property alleged to have been wrongfully taken and detained by the appellee. Four pleas were ⁵⁵⁷ filed: first, non cepit; second, that the goods and chattels belonged to the defendant; third, that they were of the personal property of Frederick Schneider, deceased, and belonged to his legal representatives; and, fourth, that the said goods and chattels were not the property of the plaintiff. The plaintiff’s offers of evidence were primarily directed to showing, under the third and four issues, which raised the substantial contention in the case, that during his life-time Frederick Schneider had executed a bill of sale to one Samuel Fernheimer of certain goods and chattels pertaining to his dairy business; that Fernheimer had taken them into possession, and plaintiff at the earnest solicitation of Schneider, whose wife, the defendant, was a relative, bought them of Fernheimer, giving his promissory note with security therefor, and then delivered them to Schneider to use in his dairy business, with the express understanding that whenever the plaintiff desired to do so he could resume possession of them, Schneider in the meantime to have authority, by sale or exchange, for dry cows and other unprofitable stock, to substitute better ones, the substituted articles to he the plaintiff’s as if the original had been kept; that Fernheimer had recovered the purchase money due on plaintiff’s note by suit; that Schneider had made exchanges of some of the stock, recognizing plaintiff’s ownership when doing so, and plaintiff had paid the difference in trades where the old stock was valued at less than the new; and that the goods and chattels specified in the writ of replevin were made up of articles mentioned in the hill of sale to Fernheimer and purchased of him by plaintiff, and those substituted by Schneider in accordance with plaintiff’s permission, and others so substituted by defendant under an extension of the same authority to her; and that these were the goods and chattels taken and withheld by defendant and the subject of the suit. ⁵⁵⁸ It was conceded at the trial that Frederick Schneider was dead, and that when the suit was brought letters of -administration had not been taken out on his estate, but had since been issued to John T. Ensor.

The principal ground relied on by the defendant for the exclusion of the recited offers of testimony was that the goods and chattels being in the use and possession of -Schneider at the time of his death, they, or any claim concerning the same, could only be recovered by suit against ■Schneider’s administrator. This proposition presents the ■essential controversy in the case. While, as was declared in Rockwell vs. Young, 60 Md., 566 , title to the personal estate of a decedent can be transmitted only through the instrumentality of letters of administration, except in certain exceptional cases by an executor de son tort, that principle of law has no application where the title or right of possession to the goods was not in the decedent. The mere death of a party cannot operate to transmit what he did not have.

It is only the •assets of his decedent