William Ropes Trask v. James L. Karrick And Henrietta B. Karrick
| Decision Date | 06 February 1914 |
| Citation | 89 A. 472,87 Vt. 451 |
| Parties | WILLIAM ROPES TRASK v. JAMES L. KARRICK AND HENRIETTA B. KARRICK |
| Court | Vermont Supreme Court |
January Term, 1914.
ASSUMPSIT on promissory notes. Heard on special demurrer to the declaration, in vacation after the March Term, 1913. Chittenden County, Waterman, J. Demurrer overruled and declaration adjudged sufficient. The defendant excepted. The opinion states the case.
Judgment affirmed and cause remanded.
H S. Peck for the defendants.
Rufus E. Brown, Sherman R. Moulton and John F. McKay for the plaintiff.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
This case comes before us on a demurrer to the declaration. The action is special assumpsit. One of the two counts is on a promissory note for five thousand dollars; the other is on a note for twenty thousand dollars. Both are alleged to have been given by the defendants to John C. Ropes and Charles B. Wells, testamentary trustees of Samuel S. Allen, and indorsed to the plaintiff's testator, John C. Ropes,--he having resigned as trustee,--by said Wells and John Prentiss, the said testator's successor as trustee.
1. It is said in support of the demurrer that it does not sufficiently appear that the plaintiff was executor and trustee at the time the suit was brought. The profert is of letters testamentary and appointment as trustee dated December 1, 1899. The suit was brought October 3, 1912. And the argument is that an appointment on the former date is no evidence that the plaintiff was such representative on the latter date. But this comes within the rule frequently approved by this Court, and thus stated in Sowles v. Carr, 69 Vt. 414, 38 A. 77: "When a party established a judicial relation not in itself so limited in time as to have terminated at the period of litigation, it is not necessary for him to prove the continuance of the relation, but the burden is on the other party to prove its termination." When it is shown that one has been appointed to a position of trust, a presumption arises that he continues to hold it, until it is shown that he has been legally discharged. Accordingly it was presumed in Sawyer v. Knowles, 33 Me. 208, that one appointed an administrator in 1836 was such in 1844.
2. It is further said that it does not sufficiently appear that the plaintiff sues as executor and trustee. The character in which a party sues, whether in his own right or in a representative capacity, it is admitted, should appear. It is also admitted that it is not enough to add to the plaintiff's name the word "executor," "administrator," or "trustee;" as these words are usually descriptive, merely, and leave the suit an individual undertaking. But pleadings are to be given a reasonable construction, and all that is required is that it shall fairly appear, from the writ and declaration, taken as a whole, in what capacity the plaintiff brings suit. In such cases, it is not necessary to allege that the plaintiff sues as executor, if that fact fairly appears. This was so held in rather pointed language in Pope, Admr. v. Stacy, 28 Vt. 96. And for the reasons there stated we hold this declaration sufficient on the point under discussion.
3. It is also urged that this declaration is faulty in that it...
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