45 Wis. 445 | Wis. | 1878
The complaint alleges two breaches of the bond in suit: the failure of the administrators to return an inventory of the estate of their intestate within three months, and their failure to render an account of their administration within one year from their appointment, as required by law and the conditions of the bond. R. S. 1858, ch. 100, sec. 1; id., ch. 102, sec. 9.
As to the failure to account, it is claimed that no action can be maintained therefor until after a citation to the administrators to account has issued and has been disobeyed. Sec. 12, ch. 102, is relied upon to sustain the position. That section must be construed with section 9, which imposes upon the administrators the duty of rendering an account, without citation, within one year after their appointment, unless the court enlarges the time, and to render further accounts when required by the court to do so. Section 12 manifestly relates to such further accounts, the obligation to render which is created by the citation, and not to the account which section 9 requires shall be rendered in the first instance.
The complaint not only alleges breaches of the bond in the particulars named, but it also alleges that assets of the estate have come to the hands of the administrators, and that Mr. Dickey is a creditor of the estate. Mr. Dickey is, therefore, interested in the estate, and must necessarily be aggrieved by any maladministration of it.
An action under section 4 is for the benefit of all persons interested in the estate, while an action under section 2 is primarily, perhaps exclusively, for the benefit of the person who brings it. This complaint contains every averment essential to the maintenance of an action under section 4, and it would be perfectly clear that it is a complaint under that section but for the averment that the action is bi’onght for the use of M*r. Dickey, which averment is only appropriate to an action under section 2.
It is expressly stated in the complaint that the county judge authorized Mr. Dickey to bring the action in his name, pv/r-suant to section 4., and the prayer of the complaint is for judgment for the penalty of the bond alone. No specific relief is demanded in favor of Mr. Dickey. Looking at the whole complaint, we are of the opinion that the averment that the action was. brought for the use of Mr. Dickey may be rejected as sur-plusage, or treated as an averment that the action was brought on his relation or at his instigation, and that the complaint states a good cause of action under section 4. This may be a libera] construction of the complaint, but not more liberal than it should receive for the purpose of sustaining it when it is assailed for the first time on the trial. Hazleton v. The Union Bank, 32 Wis., 34.
We have been referred by the learned counsel to numerous cases having a bearing upon the questions discussed by them in their respective briefs. A review of these cases will not be attempted. They do not seem to be in conflict with each other or with the views abbve expressed. We cannot indicate (as we
It follows that the judgment of the circuit court must be reversed, and the cause remanded for a new trial.
By the Court.— So ordered.