Moir v. Dodson

By the Gourt, Dixon, C. J. This case differs very materially from that of Merritt vs. Seaman, 2 Seld., 168, cited by the appellant’s counsel. There the commencement of the declaration was the only part which contained any indication that the suit was brought by the plaintiff in any other than his individual capacity. The promises were all laid to him individually, and no mention was made of letters testamentary in the declaration or testimony. Here the death of the testator, the execution and i probate of the will, the appointment of the plaintiffs as executors, the issuing of letters testamentary to them, and their qualification and acceptance of the trust, are all distinctly alleged in the body of the complaint. There can be no pretense, therefore, that the action is brought by them in their individual character, and that the complaint states no cause of action in their favor. The only question that can be made is, whether foreign executors can sue in the courts of this state ; and this [281] the defendant Fas waived. That the plaintiffs are foreign executors, and brought their action'in that capacity, on the face of the complaint. It was ground of demurrer, and the objection could only be taken in that way. If not so taken, the statute declares that the defendant shall be deemed to have waived the same. R. S., chap. 125, secs. 5 and 9. It is the same as if the legislature had said that if the defendant fails to demur, the, plaintiff shall thereafter be deemed competent to sue and maintain his action. The defendant can no longer question his legal capacity to appear and prosecute his claim before the court. It is no doubt competent for the legislature -to authorize foreign executors and administrators to sue, provided defendants do not object in the manner prescribed; and such seems to be the effect of the statute under consideration. It is therefore too late for the present defendant to raise this question, and the judgment of the circuit court must be affirmed. Judgment affirmed.