#### Brossard, Administrator, Appellant, vs. Williams, Respondent.

*March 12*

April *1, 1902.*

*Pleading: Executors and administrators: Right to purchase claim and maintain action thereon.*

1. An allegation in a pleading that “the defendant refuses, and has ever refused, to account for or pay over” the indebtedness sued for, implies a previous demand, and is equivalent to an allegation of a demand and a refusal.

*■2.*Where, in a complaint, it was alleged that a cause of action against defendant was sold and assigned to plaintiff as administrator of a decedent’s estate, for a valuable consideration, it sufficiently alleges plaintiff’s legal capacity to sue.

3. In such case, if plaintiff has a valid transfer of the claim as against his assignor, and defendant has no interest in the estate represented by plaintiff, the defendant is protected and has no interest to inquire further.

Appeal from an order of tbe circuit court for Ashland county: JohN K. Parish, Circuit Judge.

*Reversed.*

The plaintiff brings this action as administrator of the ■estate of D. A. Williams, deceased. The complaint shows the •death of Williams intestate, and plaintiff’s appointment and qualification as administrator. It then says that the Ashland News Company, a corporation, executed notes and a chattel mortgage to one John Thompson, for $1,500. These notes ■•and mortgage were duly assigned to Ella V. Williams. On December 18, 1894, said corporation paid upon said notes and mortgage the sum of $503.32 to defendant, *John 0. Williams,*■for said Ella V. Williams. The defendant thereby became indebted to her for money had and received for her use, no part of which sum has been paid. The defendant refuses, and has -ever refused, to account for or pay over the same, or any part thereof. On February 28, 1899, said Ella V. Williams, for *&*valuable consideration, sold and assigned said claim to the *90plaintiff, wbo is now tbe lawful owner and bolder of said indebtedness.

Tbe defendant demurred to tbe complaint, on tbe grounds that it did not state facts sufficient to constitute a cause of action, and tbat tbe plaintiff bad not legal capacity to sue. Tbe trial court first enterad an order overruling tbe demurrer. Later, said order was vacated, and an order en-. tered sustaining tbe demurrer, from wbicb this appeal is taken by plaintiff.

For tbe appellant there was a brief by *Paul D.*Durant, attorney, and *E. E.*Brossard, of counsel, and oral argument by *Mr. Brossard.*

*W. E.*Cavanaugh, for tbe respondent.

BabdebN, J.

1. Tbe defendant insists tbe complaint is insufficient, because it fails to allege a demand upon defendant before tbe commencement of suit. It is alleged tbat “tbe defendant refuses, and bas ever refused, to account for or pay over” tbe indebtedness sued for. Defendant’s contention is completely answered by tbe case of *Divan v.*Loomis, 68 Wis. 150, 31 N. W. 760, in wbicb it is said: “An allegation of refusal implies a previous demand, and is equivalent to an allegation of a demand and a refusal.”

2. Tbe second point urged by defendant is tbat tbe plaintiff bas no legal capacity to sue, for tbe reason tbat be bas no power or authority as administrator to purchase tbe claim upon wbicb this action is based. Tbe general proposition is admitted tbat an administrator will not be permitted to speculate with tbe funds of bis decedent’s estate. But tbat proposition is not here for consideration. Tbe allegation is tbat tbe claim against defendant was sold and assigned to plaintiff for a valuable consideration. If tbe plaintiff bad a valid transfer of tbe claim as against bis assignor, the defendant bad no interest to inquire further. *Chase v.*Dodge, 111 Wis. 70, 86 N. W. 548; *Sheridan v. New*York, 68 N. Y. 30. So *91far as the pleading discloses, the defendant bad no interest in the estate represented by plaintiff. A payment to plaintiff would be a complete shield against any further prosecution of the claim. If plaintiff was mismanaging the estate intrusted to his care, or speculating with its funds, he was responsible to the parties interested in the estate. The defendant had no interest in any controversy that might arise in this respect, so long as he was protected against any claim that could be made by plaintiff’s assignor.

*By the Court.*— The order sustaining the demurrer is reversed, and the cause is remanded with directions to enter' an order overruling the demurrer, and for further proceedings according to law.