
    Sylvester H. Everett et al. v. Daniel Waymire et al.
    1. A material allegation of fact in a petition may be specifically denied in, tbe answer; to strike such specific denial from the answer is error.
    2. A general demurrer to an answer for want of facts sufficient to constitute a valid defense, will not be sustained when the facts in the-answer, if well stated, would constitute a sufficient defense. It is the office of a motion, and not of a demurrer, to make a pleading more-definite and certain.
    3. Where an answer is constituted of several numbered paragraphs, a general demurrer to each paragraph is not well taken where the-answer, as a whole, shows a valid defense to the cause of action.
    4. In an action on an administrator’s bond, assigning as a sole breach of the-bond, unfaithful administration in this, that the administrator has negleeted and failed, on demand of payment of their claim, to bring lands belonging to the estate of decedent into market to raise money to pay plaintiff's claim against the estate, it is a valid defense, that plaintiffs have in their possession, as surviving partners of decedent, applicable to the payment of their claim, assets of the late Arm, the one-third part of which is due the decedent, and sufficient in amount to liquidate the claim of plaintiff.
    Error to the District Court of Miami county.
    The action below was brought on the administration hond of Sylvester Ii. Everett, given as administrator de ■bonis non of Andrew Stephens, deceased. His co-defend.ants are the sureties on the bond. This bond was executed on the twenty-first day of October, a. d. 1867. It is in •form and conditioned as required by the statute.
    The petition alleges, among other things, that in a eer■tain proceeding in the Court of Common Pleas of Montgomery county to settle the co-partnership affairs of the late ■co-partnership of Daniel "Waymire, John Yount, and Andrew •Stephens, deceased, and for the sale of certain real estate belonging to the late co-partnership, to which proceedings the defendant, Everett, as administrator, etc., was a party with others, the following order was made by the court .about the “4th day of October, 186-,” to-wit:
    “ It is further ordered that the balance of the said claims •of Waymire and Yount (and the plaintiffs say they are the same Waymire and Yount mentioned in said order), after deducting the amount paid thereon by their election, .aforesaid, said balance, amounting to two thousand six hundred and fifty-tw.0 dollars and eighty-five cents (|2,652.85), be and remain a subsisting liquidated claim against the estate of Andrew Stephens, deceased.”
    Plaintiffs say this order was made and entered upon the minutes of the court with the consent of defendant Everett, as administrator de bonis non; that on the first day of January, 1871, and before the expiration of eighteen months after Everett had accepted the trust, they demanded payment of their claim, and that since that time they have repeatedly made demand of payment, and the administrator,, not denying the justice of their claim, has failed to pay the-same, giving as excuse that he had no fuñds in his hands-belonging to said estate wherewith to pay the claim. They allege that all claims against the estate of Stephens, having priority over the general indebtedness, were paid prior to-January 18, 1871; and say there is situate in the counties-of Miami and Montgomery, Ohio, fifty thousand dollars-worth of real estate, whereof Andi’ew Stephens, died, seized in fee, subject to the payment of the debts of the estate; that defendant, as administrator, neglects and fails to bring this real estate to sale, or so much thereof as will satisfy the demand of the plaintiffs, and allege this failure- and neglect “ is an unfaithful administration of the estate-on the part of Everett, and a violation of his trusts and duties as administrator.” They allege this suit is brought upon leave, for that purpose, obtained from the probate-court.
    To this petition defendants made answer as follows, viz ::
    
      First. They deny the jurisdiction of the Court of Common Pleas of Montgomery county to make the finding and decree set forth in said petition, and constituting the ground of said action.
    
      Second. They deny the agreement set up in said petition..
    
      Third. They deny the authority of said Sylvester H. Everett, as administrator of Andrew Stevens, deceased, to-make such agreement.
    
      Fourth. They aver that there was, at the time of said alleged agreement and decree, property and assets of the partnership, in the hands of said Waymire and Yount,, sufficient to pay alleged indebtedness of said Andrew Stevens to them.
    
      Fifth. They deny that said estate is, or then was indebted to the plaintiffs, in the amount stated in said petition, or in any amount whatever.
    
      Sixth. Defendants admit that in an interlocutory order,, taken in said cause, in the Court of Common Pleas of Montgomery county, said defendant, Sylvester Ii. Everett* being requested to assent in writing, to what he was informed and believed was an order of partition in the premises, did give such written assent, not at all supposing that said entry or order contained matters conclusive, or intended to be conclusive as to the indebtedness of the estate of said Stevens to said plaintiffs, and defendants say that the action in which said entry was made was a proceeding in partition under the statute, with notice of publication, and not otherwise, and that although in connection with said proceedings, the said Everett, Waymire, and Yount made some attempts to ascertain the true state of account between the members of said firm, and made partial investigations thereof, yet they there and then, of necessity, left sundry questions concerning said accounts open and unadjusted for future investigation and settlement.
    
      Seventh. Defendants, for further answer, say that at the: time of said negotiations, proceedings, and enti’ies, said Waymire and Yount held assets in their hands, belonging to said firm, of the probable value of seven thousand dollars, in real estate, exclusive of that described in said petition, and in machinery, notes, and accounts, and that said assets were and are ample to liquidate and discharge all claims they may hold against the estate of said intestate.
    
      Eighth. Eor further answer said defendants say, that in October, eighteen hundred and sixty-seven, said Sylvester H. Everett was duly appointed administrator de bonis non of the estate of Andrew Stevens, deceased, and gave due notice of his appointment, according to law, and that for more than eighteen months thereafter, he had no knowledge nor notice of any real or pretended claim of said Way-mire and Yount against said estate, and that meanwhile the heirs of said Stevens proceeded to dispose of said real estate not owned an common by himself and said plaintiffs, by proceedings in partition, and that they received the greater portion of the proceeds of said sales, leaving undisposed of, for want of bidders, several small parcels, amounting in the aggregate value to about one hundred and forty dollars,.and no more. And as to the other lands so sold on partition, and the proceeds of which have not been paid over to them, said Everett has made due and diligent effort, in every lawful mariner, to possess himself of the same to liquidate any possible balance due to said plaintiffs and others, but has hitherto been wholly unable so to do.
    
      Ninth. Defendants further say that the said Everett has not in his possession, or under his control, moneys of said estate sufficient to pay the said pretended claim of plaintiff's, nor any part thereof, nor has he been able, by due diligence, to possess himself of such moneys since said alleged indebtedness became known to him.
    
      Nine and one-half. Eor further answer, defendants say that at the time of the election of said Yount and Way-mire, to take said premises so sold to them in partition, they agreed, as preliminary to said election, that upon the ■consent of said Everett thereto they would sell and convert :said real estate, and account to said administrator for one equal third part thereof, and that they have since sold said premises at an advance of four thousand dollars, one-third ■of which is due from them to said estate.
    
      Tenth. Defendants deny that the said Everett has been .guilty of negligent or unfaithful administration in the premises, but aver that he has faithfully and diligently sought to convert the assets of said estate, and to pay with "the proceeds thereof, all its indebtedness, and in every other manner to discharge and perform all and singular his duties as such administrator. Whereupon they pray judgment against said plaintiff's for their costs.
    May 27,' 1872, plaintiff's filed a motion, asking the court to strike from the files the answer from “ number one to nine inclusive.” May 28,1872, the plaintiff's filed a general ■demurrer “to each of said answers, from number one to number ten inclusive, severally.”
    May 9, 1871, the motion and demurrer were heard. On the motion the court ruled:
    “And the same being argued, it is considered ordered and adjudged by the court that answers No. 1, 2, 3, 4, ñ and 10
    
      he stricken from the files as being evasive, frivolous, and -dilatory merely.”
    On the demurrers the judgment of the court was as follows :
    “And upon the further consideration of the court it is considered aiid adjudged that the demurrer to answers No. >6, 7, 8 and 9J be and are sustained.”
    These rulings of the court left, of the answer, paragraph INo. 9. Why it should have been left in the answer as ■the sole answer, does not appear. The court treated it as of no consequence, and proceeding at once to render a judgment as on default in favor of plaintiffs, for the full amouut -of their claim.
    The case went to the district court on petition in error; that court affirmed the judgments of the court of common pleas. It is here alleged that the judgment of the district -court was erroneous in sustaining the rulings and judgments of the court of common pleas on defendant’s motion .and demurrers.
    J. T. Janvier, and James Murray, for plaintiff in error.
    
      Horton & Thomas, for defendants in error.
   Ashburn, J.

Section 92 of the code of civil procedure .-allows specific denials of material allegations in a petition, -and also a statement of new matter constituting a defense. Plaintiffs allege in their petition that, in a certain proceeding in the court of common pleas of Montgomery county, in which they were plaintiffs, and defendant Everett and •others were defendants, a certain order or decree was entered of record in that court. They then allege, as a material fact in their petition, that Sylvester II. Everett, as administrator de bonis non, consented to the making of that ■order, and consented that it be put upon the minutes of that court.

The alleged order of the court is recited in the petition, .and no consent appears therein. So that, if any such agreement was made, it must be established by proofs outside of the record. If it was a material and necessary statement' of fact, and necessary to make a valid petition, it was lawful for defendants to meet such material allegation in the-petition by specific denial. Defendants met this allegation of consent by specific denial as follows: “Second. * They deny the agreement set up in said petition.” This denial was stricken from the files by order of the court, on plaintiff’s motion.' In our opinion, it was error to do so.

The answer in this case is demurred to as containing, eleven distinctly numbered defenses, and the court of common pleas, having strickeu from the files “ answers No. 1,. 2, 3, 4, 5, and 10,” treated paragraphs Nos. 6, 7, 8 and 9f • a¡s intended for so many distinct defenses, and sustained the-demurrer to each. One demurrer only was filed, but its-language is, plaiutiffs “ demur to the answers of said defendants . . . from number one to number ten, inclusive,, severally.”

The consent of the administrator to the decree or finding of the court as alleged in the petition being distinctly denied by the answer, the facts contained in the answer, if well stated, and found to be true, would constitute one, if not two, valid defenses to the action on the bond. Where-the facts in an answer are defectively stated — even confusedly stated, as in this case — and a general demurrer is interposed, the court will, under section 114 of the code, “ with a view to substantial justice between the parties,” take the pleading by the four corners, consider it as a whole, and, if the whole answer is found to contain facts sufiicient,, if well and clearly stated, to constitute a defense to the action, overrule the demurrer. The general demurrer tests the strength of the pleading, and not its form.

It appears, from the whole case, as presented on the record, that the plaintiffs and Andrew Stephens, deceased, were partners in the lifetime of decedent, and that the firm owned both real estate and personal property.

Examining paragraphs 6, 7 and 9J contained in the.answer, to which the demurrer was sustained, we find the following facts to be admitted by 'the demurrer. That defendant, Everett, as administrator de bonis non of Andrew Stephens, deceased, consented in writing to some interlocutory decree in the court of common pleas of Montgomery county, but not intending thereby that the entry should conclude the rights of the estate, or be conclusive as to the indebtedness of the estate of the decedent to the plaintiffs; that Everett understood and considered the action as a proceeding in partition under the statute and nothing more; that, in that action, an effort was made by Everett, Waymier, and Yount, to ascertain the true character and condition of the accounts of the firm; that the investigation was. only a partial one, leaving open for further and future investigation and determination sundry questions as to the accounts and condition of the late firm; that, at the time of the investigation, and still unaccounted for, Waymire and Yount had and held assets of the late firm, in the form of machinery,, notes, and accounts of the probable value of seven thousand dollars, and more than enough assets belonging to decedent’s estate to liquidate any and all claims held by plaintiffs against the estate of Andrew Stephens, deceased; that,, in the supposed partition pi'oceedings, plaintiffs elected to. take the real estate belonging to the late firm, and agreed with Everett, as administrator, that if he would consent to their election to take the real estate, they would sell the same and account to him, as administrator, for one-third of the profits made on a resale; that he consented to their election; that they elected to take the property, have since sold it, realizing therefrom four thousand dollars advance, one-third of which belongs to, and is due to the estate of Andrew Stephens, deceased; when added together, there is in the possession of plaintiffs about eleven thousand'dollars, which may be denominated firm assets, one-third of which, or three thousand six hundred and sixty-six dollars, with an amount of interest, is due from the plaintiffs to the defendant, Everett, as administrator de bonis non.

If the administrator, on the trial of the case, can make the facts, admitted by the demurrer, good by proof, the '•plaintiffs have no cause of action against the administrator • on his bond.

In this state of fact, if true, the failure of the administrator to cause the lauds belonging to the estate of the dead partner, to be brought into market and sold to pay the •claim of plaintiffs, was not unfaithful administration, and was not a breach of the administrator’s bond.

It appears, in the argument of counsel, that the case was ■ disposed of in the court of common pleas, upon the theory that the order, made in the court of common pleas in Montgomery county, and set out in the petition -was, in effect, a judgment in favor of plaintiffs upon their claim. If such was the case, the facts, set up in the answer of defendants, could avail them nothing. But it does not so appear to us in the light of the pleadings and admitted facts. In the answer it is denied that the Montgomery court had jurisdiction to make the order, and, the alleged consent of the administrator to the order is specifically denied in the .answer. That order, as seen in the light of the denials and •admitted facts, in the pleadings, is no more than an admission of the claim by the administrator; and was by him •expected to be reduced, if not wholly paid, by assets in the hands of the surviving partners, that were in, or might •come to their possession for such purpose, and belonging to the estate of the deceased partner.

We are strengthened in this view by a consideration of the fact that plaintiffs thought it necessary to obtain leave •of the probate court to bring an action on the administrator’s bond. They knew the provisions of the administration act upon the right of creditors to sue on administrators’ bonds. They knew, if their claim was admitted to be just; ■had been allowed by the administrator; had been ascertained by judgment or award against the administrator, and the administrator de bonis non had committed a breach of his bond, they could bring an action on his bond at their ■option, under the provisions of section 182 of the administration act. When, however, no one of the conditions exists in relation to the claim, named in section 182, before a creditor can bring an action on the bond, he must avail* himself of the condition named in section 184, and first obtain leave of a court to bring his action on the administrator’s bond. In this condition of the law, we are authorized to presume that plaintiffs were of opinion or knew their claim, in this case, had not been admitted to be just, bad not been allowed by the administrator, and had not been ascertained by judgment or award against the administrator de bonis non. If it existed, in either of the conditions, named in section 182, why obtain leave of the court to bring his action under section 184?

If we are correct in our views of the condition of plaintiff’s claim, then the admission, whatever it was, if in character with the facts alleged in the answer, would only be prima facie evidence of the justice and validity of the claim,,, and the administrator is at liberty to contest the validity thereof in any way warranted by the facts in the case, as. provided in section 195 of the administration act.

As the case is presented to us, we find error in the judgment and proceedings of the court of compion pleas, and. that the district court erred in affirming the judgment of the court of common pleas. It is now here adjudged that the judgment of the district court be reversed, and we also reverse the judgment of the court of common pleas, and remand the case to that court for further proceedings.  