Bantz v. Rover

We think it was error in the court to dismiss the answer and *219cross-petition of Adam Bantz on the ground that the .“answer and cross-petition is not verified by the signature -of the attorney and does not show the name or seal of the notary public before whom it .purports to have been signed by Adam Bantz.” Under Section 5114, Revised Statutes, the court should have permitted the pleading to have been amended. 70 O. S., 88.

. We are further of the- opinion that the court should have sustained the demurrer to the original petition. But as no error is prosecuted to this judgment, this court can take no action i-n regard to it.

The original action was evidently brought under Section 6202, Revised Statutes, and asked for the construction of the will of Herman Rudolph Rover and for an accounting. Adam Bantz, as guardian of Iledwig Bantz, was not entitled to bring such an action. He had no trust to administer under said will and therefore could not maintain such an action (19 O. S., 468; 29 O. S., 147). -But in an action for partition and for an accounting between the parties the will could be construed and the rights of all the parties could be adjusted. 19 O. S., 51; 33 O. S., 128; 39 O. S., 590.

Judgment reversed and cause remanded for further proceedings.