A plaintiff who sues in a representative capacity is required by pleading and proof to establish right to sue, and a general denial raises the general issue inclusive of plaintiff's right to sue. The nonappointment of an administrator is required to be established by the records, for the records are the best evidence of what they contain or do not contain. While a widow is entitled to notice of administration proceedings and entitled to preference of appointment as administratrix of her deceased husband's estate, the fact that she did not move for administration of such an estate or receive notice of it would not render such proceedings void, but only make them voidable; therefore, such a widow's testimony that she had no notice of such proceedings does not prove that an administrator or administratrix does not exist.
Herein the plaintiff properly alleged nonappointment of an administrator as required, but she did not make proper proof until upon hearing of motion for new trial. Had the proper allegation in this respect not been made, the proof would have come too late. But there was an imperfect effort to prove the facts required in the plaintiff's case; therefore, proof on rehearing related thereto and made perfect that which was theretofore imperfect.
I express no opinion on the merits of the case for the reason that the importance of protecting the wholesome rule of law, herein considered, applicable to all cases, transcends in magnitude the presumptive correctness of the eminent trial judge's conclusions as applied to the merits of the particular controversy under consideration.