Gray v. Chase

98 A. 940, 115 Me. 350, 1916 Me. LEXIS 82

• Court: Supreme Judicial Court of Maine
• Decided: November 1, 1916
• Status: Published

Opinion

Philbrook, J.

To the plaintiff’s declaration the defendant filed a ■general- demurrer which was sustained and the declaration adjudged bad. The plaintiff then filed a motion to amend the writ and declaration.- This- motion was denied and the amendment disallowed as. a matter of law. The case is before us upon plaintiff’s ■exceptions .to these rulings.

The amendment avers that within eighteen months after the •executrix had filed in the probate court her affidavit that notice had been given by her of her appointment as executrix, the plaintiff presented to her the claim declared upon; but neither in the original declaration, nor in .this amendment, is there any averment that the claim was presented to the executrix in writing. Such averment is necessary. Stevens v. Haskell, et als., 72 Maine, 244.

It follows that the amendment would be demurrable and hence not allowable. Garmong v. Henderson, 112 Maine, 383.

Exceptions overruled.