
    RUPERTO MARTIN, Executor of the Will of Francisco Martin, Deceased, et al., Plaintiffs, v. ROYAL INSURANCE COMPANY, Defendant
    OPINION ON DEMURRED TO THE DECLARATION.
    1. Demurrer lies for a misjoinder of party plaintiffs.
    2. Under the laws of Porto Rico an executor of a will has no right to sue upon claims due the testator unless the will expressly so provides.
    May 14, 1902.
    
      Mr. C. M. Boerman, attorney for plaintiffs.
    
      Mr. F. II. Dexter, attorney for defendant.
   Holt, Judge,

delivered tbe following opinion:

This cause is submitted upon a demurrer to the declaration. It is urged there is a misjoinder of party plaintiffs. If this be apparent upon the face of the declaration it may be reached by demurrer. The action is upon a policy of insurance. Both the executor and the heirs of the insured are joined as plaintiffs. Prom the averments of the declaration the loss occurred during the lifetime of the testator.

Under the Civil Code of Porto Rico, § 902, the powers of an executor are limited, and he does not seem to have the right to sue upon claims due tbe testator; but it expressly provides tbat the executor’s powers are thus limited if the testator has not provided as to them. In this instance it appears from one clause of the will that all debts due the testator are to be collected, and in another clause the executor is given full and ample power to carry out the provisions of the will. If it be true that otherwise he would not have the power to sue for this claim, yet clearly by the will he has the power to do so, and the widow and heirs are not proper or necessary parties.

It is also urged that assumpsit does not lie upon a policy of insurance under corporate seal; that covenant is the remedy. Undoubtedly this was the well-settled rule as to an action upon a specialty. It has been variously modified, and the action of assumpsit has grown in importance and use; but an examina,tion of the declaration clearly obviates this objection, and it is not well taken. Upon the ground, however, of a misjoinder of parties the demurrer is sustained.  