This action is one to be tried by & jury under section 968, Code. The plaintiff is administratrix of one Martin Wood. Martin Wood was one of the executors of Samuel Wood, and by his will was entitled to receive $5,000 for serving as executor. When Martin Wood died, there was due him, as the complaint alleges, a part of one years’ salary. The surviving executors have the money in their hands and refuse to pay it over. This is a pure money demand.
The second cause of action is similar in its nature. By the will of Samuel Wood, Martin Wood was entitled to the income of $5,000 yearly. That the same remained in the executors hands, accumulated, and the plaintiff in this second cause of action demanded judgment for its payment. The third cause of action is purely one for money only, and is based upon an express contract, made by the executors. One Schenck made objection to the probate of the will of Samuel Wood, and the executors agreed to give him $10,000 to withdraw his objection. Under this arrangement Martin Wood advanced to Schenck $5,000 and the plaintiff in the third cause of action seeks its recovery.
The fourth cause of action is based upon an assigned claim.
One Edwin T. Schenck, is alleged to have had a claim for Services rendered to the estate as a lawyer. This bill passed from Edwin T. Schenck by assignment and one-half of it was owned by Martin Wood, when he died. The other half was then owned by the defendant Simonson. This is an action for money only and must be tried by a jury. The order appealed from should therefore be affirmed with costs.
Pratt. J., concurs.