Wells v. Applegate

10 Or. 519 | Or. | 1883

By tbe Court,

Waldo, J.:

Tbis is an action on a promissory note made and delivered to tbe respondent by tbe appellant’s intestate. Tbe statute of October 11, 1862, Gen. Laws, 1874, p. 188, sec. 373, provides that, “an action may be commenced against an executor or administrator at any time after tbe expiration of six months from tbe granting of letters testamentary or of administration, and until tbe final settlement of tbe estate and discharge of such executor or administrator from tbe trust, and not otherwise.” Tbe complaint alleges, “that on tbe 3d day of November, 1879, at Boseburg, Douglas county, Oregon, an order or determination of tbe county court for Douglas county, state of Oregon, was duly made, appointing tbe defendant administrator of tbe goods, chattels and credits of said Chas. Applegate, and that be is now such administrator.” Tbe pleader seems to have followed tbe form in 1 Estee’s PI, 312, without noting that the form was not applicable under tbe laws of this state. There is, or was no such section in the probate act of California as that above cited. Under our statute, the complaint must show that six months had elapsed after the granting of letters of administration before the action was brought. If this essential fact is not alleged, a general demurrer that the complaint does not state facts sufficient to constitute a cause of action, will lie. [Maine Central Institute v. Haskell, 71 Maine, 487; Ellerson v. Halleck, 6 Cal., 386; Gilbert v. Cameron, 16 Wen., 579.) An order made on a certain day-appointing a person administrator, is merely an order nominating the person to the office; such person does not thereby become an administrator. [McKean v. Frost, 46 Me., 239, 248.) The letters of administration are his commission of office, which, on their face, authorize him to act. But since hePis not '.¡authorized to act until he has filed a bond, it seems to be proper construction of the statute that the bond is a condition precedent to the granting of letters. The appointee has no right to his office until he has filed his bond. It would hardly be legitimate to presume that he has letters of administration to which he is not legally entitled, and which he could not have without assuming, or having the means to assume, a false character. Section 373 clearly signifies that when letters of administration are granted, the bond has been filed, and the appointee has been fully installed in his office.

The word appointment, generally, may signify such actual installment in the administration office. It is so used in section 1080. But the complaint does not use the word in this general sense. Had it done so, it is doubtful whether such a form of allegation of the fact that letters of administration had been granted would have been good pleading. (Beach v. King, 17 Wen., 97.)

The other objections urged by the appellant are not well founded. The respondent swore that the promissory note set up in her complaint was made for a lawful consideration. Her testimony was not contradicted, although letter No. 17 seems to have been offered in evidence by the appellant with some design of that kind. But this design, if it existed, was not carried out. The letter might well have been ruled out as irrelevant, since there was no issue before the jury to which it was pertinent.

The instruction that the promissory note of a married woman was absolutely void, was not entirely correct. The rights of property secured to married women by the state constitution necessarily imply a power, under certain circumstances, to make contracts. (Starr v. Hamilton, Deady, 268; Cooksen v. Toole, 59 Ill., 515.) But when the respondent pleaded her coverture, the appellant should have set up matter, if any such there was, in avoidance of the plea. The burden was on the appellant to show an adequate consideration for the note set up by him in his counter claim. (West v. Laraway, 28 Mich., 464; Nash v. Mitchell, 71 N. Y., 199; Broome v. Taylor, 76 N. Y., 564; Way v. Peck, 47 Conn., 23.) He could not, in the absence of such proof of the validity of the note, make out that the instruction was error. However, since the case must go back, with liberty to the respondent to amend her pleadings, the appellant will have an opportunity, if the case comes to a second trial, to show, if the facts are with him, that the note is supported by a valid consideration.

Judgment reversed.

Lokd, J., concurs.