Chamberlain v. Tiner
| Decision Date | 11 January 1884 |
| Parties | D. T. Chamberlain, Administrator, v. John Tiner |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Dakota county, Crosby, J., presiding, overruling a general demurrer to the complaint.
Order affirmed.
O'Brien & Wilson and A. Schaller, for appellant.
Wm Hodgson, for respondent.
Action for money "advanced, delivered, and paid" to defendant by plaintiff's intestate. The material allegations of the complaint are "that said George Varian died intestate, in Dakota county, on the 17th of May 1882, and that on the 20th of November, 1882, the plaintiff was, by the judge of probate of said Dakota county, duly appointed administrator of the estate of said George Varian and thereupon the plaintiff duly qualified as such administrator, and ever since has been, and now is, the duly qualified and acting administrator of said estate;" that during his lifetime, and about the month of March, 1882, said Varian advanced, delivered, and paid to defendant the sum of $ 1,471, "which sum defendant agreed to repay to said George Varian;" that defendant has ever since kept and detained, and still keeps, said money; that plaintiff, as administrator of said estate, has demanded payment, but that defendant refused and still refuses to pay the same, or any part thereof. Two objections are made to the sufficiency of this complaint: First, that it does not sufficiently allege plaintiff's appointment as administrator second, that it does not allege when this money became due and payable.
1. It is not now necessary, as formerly, to make profert of letters testamentary or of administration. But it is necessary for a plaintiff who sues as executor or administrator to allege in a direct and issuable form that he is such. This properly should be done by alleging that he is executor or administrator by virtue of letters issued by a probate court of some county, giving the name of the court and the term at which the letters were granted. Hence, in this case, the better mode of pleading the fact that plaintiff was administrator would have been by direct allegation that letters were issued. But no form of words is absolutely essential to show plaintiff's authority. A complaint is not demurrable if the fact appears substantially. In this case we think it does. Bliss, Code Pl. § 264, and cases cited.
2. A promise to pay money, no...
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