Burt v. Clague
| Decision Date | 20 March 1931 |
| Docket Number | 28,328 |
| Parties | WENONAH J. BURT v. FRANK CLAGUE AND ANOTHER |
| Court | Minnesota Supreme Court |
Plaintiff appealed from an order of the district court for Redwood county, Enersen, J. granting defendants' motion to substitute as defendant the State Bank & Trust Company of Redwood Falls as special administrator of the estate of Susan E. Salisbury. Affirmed.
Defendants' motion to interplead another was properly granted.
It was not error for the court to grant defendants' motion to have another interpleaded and substituted as the defendant with directions that appropriate pleadings be made.
Robert Beach Henton, for appellant.
N R. Ryerson and Somsen, Dempsey & Flor, for respondents.
Plaintiff appealed from an order granting defendants' motion to interplead the State Bank & Trust Company of Redwood Falls as special administrator and as defendant in the action.
Susan E. Salisbury died September 8, 1930. Defendants are named as executors in what purports to be her last will. They have offered it for probate. They have, for an honest purpose but apparently without legal right, taken possession of certificate No. B-2659 for 2,790 shares of the capital stock of Parke Davis Company, of the suggested value of about $90,000.
Plaintiff claims by virtue of an arrangement made with the decedent in her lifetime to be in possession of the title of this property. She did not sue in replevin, but her action sounds more in equity, asking that defendants be ordered to deliver the property to her. The defendants initiated the appointment of the State Bank & Trust Company as special administrator of the estate of the decedent, and upon its qualifying as such they moved the court for an order interpleading and substituting such special administrator as defendant in their place; and for an order permitting them to deliver the property into court or to such person as the court may direct; and dismissing the action as to them, who disclaimed any interest in the property but indicated that the legatees in the will desired the estate to contest plaintiff's right to the property. Defendants are attorneys and now represent the special administrator, which claims the property for the estate. The motion was granted, and the court substituted the special administrator as defendant, dismissed the action as to the original defendants, and directed the property to be delivered to the special administrator, the order requiring it to keep the property and income therefrom intact until the further order of the court. It also directed the plaintiff to amend her complaint and serve it upon the substituted defendant, which was required to plead thereto.
The proceeding for substitution was made under G.S. 1923 (2 Mason, 1927) § 9261. Appellant's counsel stresses the fact that it appears from the record that the substituted defendant never made a demand upon the defendants for the property. The statute does contemplate a demand. A liberal construction of the statute which appeals to us as wholesome requires such demand to exist in substance rather than mere form. We construe the statute as meaning a situation wherein someone aside from the plaintiff is actually claiming a right to the possession of the property involved. Here was an unusual situation. The plaintiff was apparently unwilling to await appointment of the representative of the estate. It may be that she had justifiable reasons for not waiting. We do not know. The certificate stands in the name of decedent and was in her possession at the time of her death. Plaintiff does not claim right of possession until after the death of...
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