Since filing a memorandum herein under date of November 27, 1940, my attention has been called to an "Answer of Mary L. White, Administratrix, * * * to Petition Objecting and Excepting to the First Account of Administratrix," from which it appears I was in error in my understanding that no motion or responsive pleading had been filed in answer to the petition of Noel R. White. This makes it advisable to consider whether this error has any bearing upon the conclusion reached that the question of the jurisdiction of the Probate Division of this Court to determine the individual claim of administratrix had not been formally raised by the pleadings.
The petition of Noel R. White is by way of objecting to the first account of the administratrix, it being set forth that the individual claim of the administratrix, being without basis in fact or in law, should not be allowed. I take it this petition is nothing more than an objection, and that it does not place in litigation the question of the individual rights of the administratrix under the alleged contract. Nor does the answer of the administratrix place the question in litigation; on the contrary, the answer denies the right to determine the question in these proceedings. Counsel on both sides agree the burden of establishing the claim is on the administratrix acting in her individual capacity. If she has such burden, it is her right and privilege to assert her claim and, if a prima facie case is made out, to have a specific answer to the facts she alleges. This privilege has not been availed of in this cause. Therefore, it seems the sole question in this cause is whether the first account of the administratrix will be approved, with the contractual claim of the administratrix against the estate included. All are agreed the account should not be so approved.
In Civil Action No. 9144, filed in this Court since the oral argument of this cause, the administratrix has asserted her claim under the contracts upon which she relies. If the defendant Noel R. White (who filed the petition of objections to the account in this administration cause) answers the claim thus asserted in Civil Action No. 9144, the question of jurisdiction becomes moot.On the other hand, if in the last mentioned suit, the said Noel R. White attacks the right to proceed other than in the Probate Division of this Court, the issue of jurisdiction, it seems, will be squarely raised. If successful in his contention, the administratrix would be relegated to her claim in the Probate Division, such claim to be submitted, not on objections to a first or an intermediate account, but upon a petition setting forth her claim, assuming the burden of proof, and calling for an answer, in law and in fact, to the allegations made by her.
Therefore, it seems no change should be made in the ruling of the Court by its memorandum herein filed November 27, 1940. The importance of the proper formal raising of the issues is apparent, for if a ruling is made simply upon argument of counsel and not upon issues properly raised by the pleadings, such ruling is not res adjudicata and is not one from which the defeated party properly may raise the question on appeal.
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