34 Kan. 563 | Kan. | 1886
The opinion of the court was delivered by
“Under the code it is not necessary or proper for the plaintiff who sues as executor or administrator to make profert of letters testamentary or of administration, as was requisite under the former practice. But it is necessary that the plaintiff should allege, in a direct and issuable form, that he is an executor or administrator. This should be done by alleging that the plaintiff is executor or administrator by virtue of certain letters testamentary or of administration, regularly issued by a surrogate of some county of this state, at the same time giving the name of the surrogate, or of his county, and the time and place at which letters were granted.” (2 Wait’s Practice, 374.)
In Judah v. Fredricks, 57 Cal. 389, the plaintiff brought an action to recover a certain tract of land belonging to the estate of a deceased person, and the court, in passing upon the pleading, said: •
“We have already shown that the plaintiff was obliged to sue in her representative capacity; and to make out her right to bring the action, or to entitle her to recover in the action, she was required to allege in her complaint that she was the personal representative of the estate of John Ferguson, deceased. There was no sufficient averment of that fact in the complaint, and no right of action was shown in the plaintiff.” (See also Barfield v. Price, 40 Cal. 535.)
“The defendant cannot be administrator unless letters of administration of the goods, chattels and credits of the intestate have been granted to him by one of the surrogates of this state. The proper mode of pleading the fact is by a direct allegation that such letters were granted. The defendant has not pursued that course, but pleads that he was duly appointed administrator; this allegation consists partly of matter of fact and partly of matter of law, and it is not capable of trial. That the defendant was appointed administrator by somebody or in some form, is a question of fact; but whether he was duly appointed or not, is a question of law. The defendant should have said how he was appointed, and then the court could determine its sufficiency upon demurrer; or if an issue to the contrary were joined upon the fact of having obtained letters, the question could be tried by the jury.”
In White v. Joy, 13 N.Y. 83, the plaintiff brought suit upon a promissory note as the receiver of a corporation, and in passing upon the right of the plaintiff to maintain the action, the court said:
“ In such a case, it will not answer merely to describe himself as receiver, or even under the former system to aver that he was duly appointed. He must set out the proceeding so that the court may see that the appointment was legal. In such a case, the appointment of the receiver is a part of the plaintiff’s title. It is like the granting of administration or of letters testamentary in a suit by executors or administrators. Unless the fact is stated, t-he plaintiff does not show any right to sue.” (See also Gillet v. Fairchild, 4 Denio, 80; Sheldon’s Adm’rs v. Hoy, 11 How. Pr. 14: Forrest v. Mayor &c. of New York, 13 Abb. Pr. 350.)
Under the rule established by these authorities no testimony was admissible under the petition, and the objection of the railroad company should have been sustained unless the petition was amended. In such a case, an amendment would be allowed upon application, as a matter of course. Atteution was called to the necessity of such amendment when the order of revivor was entered, and specially called to it at the open
There are some other questions presented, but they may not arise again; besides, the law of the case has been quite fully declared in the former opinions that have been given in the case.
For the error mentioned, the judgment of the district coui’t will be reversed, and the cause remanded for a new trial. '