
    HERMAN J. MUELLER vs. FRANK S. BERGIN, ADMR., C.T.A. ESTATE OF ELEANOR F. MUELLER, ET AL.
    Superior Court New Haven County
    File #50701
    MEMORANDUM FILED MAY 24, 1938.
    Edward L. Clark, of Orange; Frank E. Bollmann, of New Haven, for the Plaintiff.
    Albert M. Herrmann, of New Haven; Frank S. Bergin, of New Haven, for the Defendants.
   FOSTER, J.

A recital of the facts of this case as alleged in the pleadings would be of considerable length and is unnecessary.

The defendants claim that the plaintiff, by failing within due season to make an election as to acceptance of the terms of the will of Eleanor Mueller, dec’d., has forfeited his right to make any claim against the estate.

The plaintiff does not here make any claim against the estate. He claims that one-half of the real estate in possession of the administrator of the estate and the heirs of the deceased never did belong to the deceased, but belongs to him; and he claims that what is his be now delivered to him by those in possession of it.

The defendants rely upon section 5156 of the General Statutes, Revision of 1930, and cases based upon this statute. This statute has no application to the cause of action set forth by the plaintiff in his complaint.

The motion of the defendants, Ethel Northrup and Edith Pachl, for judgment upon the pleadings is denied.  