Waterman v. Millard

22 Minn. 261, 1875 Minn. LEXIS 69

Opinion

Gileillan, C. J.

Action upon an administrator’s bond to recover the remainder of a claim due the plaintiff, as allowed by the commissioners, part of the claim having been paid by the administrator after it was allowed by the commissioners. At the May term, 1875, of the district court the defendants moved for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action. The court granted the motion on the ground that the complaint does not show that the probate court had made any order or decree of distribution, or for payment of the debts, and judgment was ■entered accordingly.

No such order or decree is set up in the complaint, and for this reason it is, according to the decision in Wood v. Myrick, 16 Minn. 494, fatally defective. By that case, it was decided that no cause of action arises on the bond in favor of a creditor until the debt, or some part of it, has been ordered to be paid by the decree of distribution. The decision makes no distinction in this respect between solvent and insolvent estates, and we think the statute intends none.

Judgment affirmed.