9 S.D. 596 | S.D. | 1897
Lead Opinion
It is alleged in the complaint: “(1) That the defendant the Mutual Reserve Fund Life Association at the times herein stated was, and now is, a corporation duly created and existing'under and by virtue of' the laws of the state of New York. (2) That on or about the third day of October, 1893, at Yankton, South Dakota, said defendant association, in
The county court has original, but not exclusive jurisdiction in all matters of probate guardianship and settlement of estates of deceased persons. The circuit court has original jurisdiction of all actions and causes both at law and in equity. It has, as a court of equity, concurrent jurisdiction in matters of administration, and will exercise such jurisdiction when the powers of the county court are inadequate to the purposes of perfect justice. St. Const. Art. 5, §§ 14, 20; Beach Mod. Eq. Jur. §§ 1033, 1034. As a rule actions to recover debts due an estate must be maintained by the executor or administrator, and not by the heirs or creditors; but to this rule there are excep
The release is a matter of defense, which should not have been mentioned in the complaint. The allegations relating
Dissenting Opinion
(dissenting). I can neither concur with my associates in the result reached, nor assent to the reasons assigned therefor. The decisions sanction, it seems to me, a doctrine productive of endless litigation and confusion, by which any one interested in the estate of a decedent may, after requesting a personal representative to institute a suit, make him a defendant in a court of equity, and there call upon him to account at any time for every act performed in the due course of administration. As I read the foregoing complaint, plaintiffs, in substance and effect, allege that their intestate, Daniel L. Trotter, concealed his true name, and falsely represented to appellant the Mutual Reserve Fund Life Association that his name was Daniel L. Hadley, and under that appellation applied for and obtained the $5,000 insura,nee policy, payable to the executors or administrators of his estate; that the insured died intestate, leaving respondents, next of kin and his only surviving heirs at law; that the defendant Frank E. J. Warrick, who is the duly appointed, qualified and acting administrator of the estate, promptly furnished to the association satisfactory evidence of the death of said member and has duly performed all of the conditions of said policy of insurance upon his part”; that said association thereupon denied all the liability on the policy of insurance, and, ‘‘in consideration of $325.25 said administrator, as such, by written endorsement upon said policy of insurance, undertook to, and in form did, release and discharge said defendant association from all liability upon said policy of insur