Magee v. Board of Supervisors

Cole, J. The principal if not the only objection taken to the complaint is, that the plaintiffs have no legal capacity to sue, in this, that it appears that they sue as surviving executors and trustees, and there is no allegation that they have been appointed as such by any court of this state having jurisdiction to appoint them ; nor does it appear that they have filed an authenticated copy of their appointment in Waupaca county, ■where this action is brought, if appointed in another state. The [249] objection is founded, of course, upon the assumption that the plaintiffs have brought the action in a representative and not individual character. But this assumption is not well founded. It is true, in the title of the suit the plaintiffs are described as “ surviving executors and trustees of the estate of John Magee, deceased.” But there is nothing in the complaint which supports the inference that they claim title to the real estate in their right as executors and trustees. On the contrary, it is alleged “that the plaintiffs were, on the first day of January, 1871, and ever since have been, and now are, the owners in fee simple of, and liable for the payment of all taxes legally assessed upon,” the lands. In other words, they claim the lands in their own right, having a fee simple 'title. And the words “executors and trustees,” by which they are described in the title, are. to be regarded as merely descriptio personce, and do not determine the character in which the plaintiffs sue. This seems to be well settled by the authorities. Robbins v. Gillett, 2 Chand., 96; Bridgeport Savings Bank v. Randall, 15 Wis., 541; Sanford v. McCreedy, 28 id., 103; Merritt v. Seaman, 6 N. Y., 168; Butterfield v. Macomber, 22 How. Pr., 150; and Root v. Price, id., 372. The words may be treated “as a mere superfluous addition, just as if the word 1 carpenter’ had been1 idly introduced.” 1 Chitty’s Pl., 252. There can be no doubt that the complaint states a cause of action in favor of the plaintiffs in their own right, and not in the character of executors or trustees. The demurrer was therefore improperly sustained. By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings. Ryan, C. J., took no part in the decision of this cause.