Judge of Probate v. Lane

50 N.H. 556 | N.H. | 1871

Ladd, J.

The plea of plane administravit does not answer the declaration, nor raise any issue that can be material; it is therefore insufficient, and the demurrer to this plea must be sustained.

The statute only allows double pleading as far as the replication. Gen. Stats., ch. 208, sec. 4. Beyond that the' common law rule applies; and it would seem that the two rejoinders to the plaintiff’s first replication must be set aside together, on demurrer, for this reason. Pickering v. Pickering, 19 N. H. 389. These rejoinders are both bad in form, for the reason that they introduce new matter by way of confession and avoidance, and conclude to the country; which is contrary to the established rules of pleading. Besides, they are both obnoxious to the objection that the matter set up in them is a departure from the plea, and does not support it. The demurrer to these rejoinders must be sustained.

The rejoinder to the third replication is bad, because (1) it introduces new matter by way of confession and avoidance, and concludes to the country; (2) it does not support the plea, but is a departure from it; (3) it does not seem to be a sufficient answer in law. Judge of Probate v. Tillotson, 6 N. H. 38.

■ The two rejoinders to the fourth replication must be held bad — (1) for duplicity; (2) for departure; (3) they conclude to the country when they should conclude with a verification.

We do not think it necessary to inquire whether the statement of the claim endorsed on the back of the writ was as full and explicit as is contemplated by the statute, because, if there is any defect in the endorsement, it should have been taken advantage of at an earlier stage of the proceedings. This may be regarded as quite similar, in most •respects, to the endorsement of the writ required in other cases. At all events, by pleading to the declaration, it must be held that the defendants have waived this objection. The endorsement cannot be regarded as any part of the pleadings, and therefore does not come within the rule that a demurrer goes back to the first fault in pleading.

Is the plaintiff’s second replication to the plea of omnia performavit sufficient in substance and form ?

Section 12, chapter 182 of the General Statutes, provides that “fraudulent conduct in tlse sale of real estate, misappropriation of the proceeds thereof, or refusal to account for the same, shall be a breach of the administration bond.”

The allegation of this replication is in substance, that the executor was guilty 'of fraudulent conduct in the sale of real estate situated on the south side of Warren street in Concord; and it contains a specification of the facts which it is claimed constitute such fraudulent conduct. It is alleged that the executor bought in the life estate of John Huse, and took the conveyance of that interest to his father-in-law Marston in trust for his own private use and benefit, which was after-wards, at said Lane’s request, conveyed to his brother-in-law Hurd; that afterwards, .under a license from the probate court, he sold'the remainder to Hurd, who took the same in trust for the benefit of Lane; and that all this was done for the purpose of defrauding the estate and the legatees for whose benefit this suit is begun.

The allegation, in short, is, that Lane so fraudulently, conducted himself in the sale of said real estate that he procured the whole title to be conveyed to his brother-in-law Hurd, on a trust for his own private use and benefit, and for a price much less than the actual value of the estate. If these facts are made out, we think they show very clearly a breach of the condition of the bond.^*

No substantial objection is seen to the form of the replication. It is in the nature of a specification of the plaintiff’s claim, and amounts merely to an allegation of fraudulent conduct on the part of the executor, and a statement of the facts upon which the claim is based. The demurrer to this replication must be overruled.

In accordance with these views, there must be judgment for the plaintiff for the penalty of the bond, unless defendants obtain leave to amend'their pleadings at the trial term.

* See Fisher v. Concord Railroad, ante, p. 205. Reporter,