Sullivan

The action is claim and delivery to recover possession or the value of certain articles of jewelry, of the agreed value of three hundred and sixty dollars, alleged to belong to decedent’s estate, which defendant wrongfully withholds from plaintiff. Plaintiff’s intestate died on April 24, 1895, and, on August 21, 1911, more than sixteen years thereafter, plaintiff was appointed administratrix of the estate of said deceased.

It is alleged in the amended complaint that, on the tenth day of May, 1895, and after the death of decedent, defendant wrongfully took possession of said personal property “and has ever since the tenth day of May, 1905, unlawfully and wrongfully withheld all of said goods and chattels”; that no administration upon the estate of said deceased “was ever had except as hereinbefore alleged”; that plaintiff is the daughter of deceased and, at the time of the death of deceased, plaintiff was thirteen years old.

There are certain averments in the complaint which appellant contends were intended to charge defendant as a trustee, either voluntary or involuntary. Respondent, however, claims that the action is simple claim and delivery and in this we agree with…