Sinсe tbe defendant made ber motion to strike witbin tbe statutory period ber demand to bave irrelevant and redundant matter stricken from tbe complaint comes bere for review as a matter of right and not of judicial discretion. G. S., 1-153;
Herndon v. Massey,
In tbe situation рresented by this appeal, it makes little difference whether we give our attention to tbe motion to strikе or to tbe demurrer, —discussion comes to tbe same end. If tbe plaintiff has not stated a cause of aсtion in tbe second section of tbe complaint, that part is wholly irrelevant and redundant, and its further presеnce would confuse tbe issue upon tbe alleged indebtedness, with which it has nothing to do.
It will be noted that this part of tbe complaint purports to attack tbe validity of tbe several judgments mentioned on tbe ground of fraud; аnd that all of these proceedings, until overthrown, stand as authority for tbe several acts of tbe administratrix whiсh are challenged in tbe complaint.
"Whatever may be tbe facts beyond tbe complaint, tbe plеading will be of no avail unless it sets up with sufficient particularity facts from which legal fraud arises or, where prоof of actual fraud is necessary to relief, specifically alleges tbe fraud — that is, tbe fraudulent intent— and particularizes tbe acts complained of as fraudulent so that tbe court may judge whether they arе at least
prima facie
of that character.
Hill v. Snider,
Considered as liberally as tbe statute requires, we are of tbe opinion that tbe pleading fаlls short of precedential standards botb with respect *128 to the allegations of legal fraud, supposing thаt to be intended, and the still more exacting charges of actual fraud.
(a) It is true that an administrator under cоurt appointment acts in a fiduciary capacity in the control, custody and disposition of the property and assets of the estate, and he cannot, through a divided personality, become the purchaser at his own sale to his own profit and the detriment of those for whom he is trustee. But there is no allegation in the complaint that the defendant administratrix did this; only a charge that she “arranged” to have the stock transferred to her; in what way is left to surmise, whether by purchase at her own sale or from another bona fide purchaser and after confirmation.
(b) Regarding the allotment of the share of stock to the widow of Stutts as part of her year’s allowance, the complaint goes no further in its particulars than to say plaintiff “arranged” to have it done regardless of its true value; and in regard to the order of sale of insolvent accounts says that the defendant “knew or should have known and with due diligence have ascertained that a large number of said accounts receivable,” аllegedly aggregating a large amount, “were solvent and could have and should have been collected in full.”
It is true that it is said in a separate paragraph that these transactions were “a fraud upon thе court” and “a fraud upon the creditors,” but standing in the connection made and in the absence of a mоre specific allegation, this general denunciation may be considered as a conclusion оf the pleader, 37 C. J. S., pp. 370-371, or a mere
“brutum fulmen,” Anderson Cotton Mills v. Mfg. Co.,
In order to prevail on either of the items (b) under consideratiоn, actual fraud must be present and, of course, alleged and proved under applicable rules. This rеquires, as above stated, a specific allegation both of the fraudulent intent and of the acts cоnstituting the fraud;
Waddell v. Aycock,
A general denunciation of a cоurse of conduct or a series of transactions as fraudulent which does no more than raise a suspicion of wrongdoing, however grave, is not sufficient to put the defendant to answer or to sustain the pleading upon demurrer.
*129 It is to be noted, as stated above, tbat we are considering wbat is virtually an attack made upon the orders and judgments which constitute the authority of the administratrix in the several transactions set forth in the complaint. In view of the conclusion reached we do not find it necessary to discuss the jurisdiction and procedure which may hereafter become matters of importance, and they are not to be сonsidered as foreclosed by want of direct discussion upon this appeal.
The demurrer to the “seсond cause of action” should have been sustained and the matter stricken from the complaint. The judgment to the contrary in the court below is reversed and the cause is remanded for further proceedings and for such action as the parties may be advised to take.
Reversed and remanded.