Municipal Court v. McElroy

30 A. 796, 18 R.I. 749, 1894 R.I. LEXIS 85

Opinion

Per Curiam.

The second count in the declaration alleges as a breach of the condition of the bond that the administratrix has not made a just and true account of her administration, but has neglected and refused to perform the conditions named in the bond though duly ordered by the Municipal Court so to do. This statement of the breach, though general and unskilfully drawn, is equivalent to a charge that the administratrix has neglected to render an account to the court though she had been cited to do so by the court, and is, therefore, a sufficient averment of a breach of one of the conditions of the bond.

Harry C. Curtis, for plaintiff. Hugh J. Carroll, for defendants.

The third count avers as a breach of the bond that the administratrix has not truly administered the goods, chattels, rights and credits of the intestate, in that Gay Brothers & Co., have had their debt against the estate of the deceased ascertained by a judgment and have demanded payment of the same from the administratrix, but that she has neglected to satisfy it or to show goods or estate of the deceased for that purpose. There is nothing in the pleading, to show that the estate has been declared insolvent, and unless such is the fact the plaintiff has a right to bring its action on the bond although three years have not elapsed since administration granted.

We are of the opinion that for these reasons the demurrer must be overruled.

Demurrer overruled and case remitted to the Common Pleas Division for further proceedings.