The plaintiff was defendant in an action as administrator upon his father’s estate, and recovered judgment in the action for his costs. Instead of issuing an execution to him for costs in his own name, the judgment and execution were made running to him in his representative capacity. The execution was levied upon the estate demanded in the present action. The present is a real action in the name of the plaintiff as such administrator. The fact is that the judgment, levy and action belong to the plaintiff, and more properly should have been in his individual name. The estate of his father has no interest in them. But the accompanying designation or description of person is harmful to no one, and, if not removed by amendment, may be considered as unessential parts of the proceedings, and may be rejected as merely surplusage. The maxim utile per inutile non vitiatur applies. Useless allegations, separable from those that are useful, may be rejected as surplusage. Gilmore v. Mathews, 67 Maine, 517. Or they may be stricken out. Bean v. Ayers, Id. 482. The redundant matter serves to explain to us at least the foundation upon which the judgment *394rests. The writ in the present action would be more symmetrical, if shorn of the irrelevant matter indicated by the amendment asked for.
A question, more of fact than of law, is presented by the report, namely, whether the judgment debtor was the owner of the estate levied upon. We entertain no reasonable doubt that he was. He was the owner by devise, if he performed certain conditions required of him under item four of Moses Eaton’s will. The will gave him an estate in fee conditional, subject to being defeated or devested, and to go over to otfier parties, if the conditions were not performed. The fact of possession and claim by him, and of non-possession and non-claim by the parties secondarily entitled under the will, enforced strongly by corroborative circumstances, satisfies us that the devisee did perform the conditions laid upon him by the terms of the will. Buck v. Paine, 75 Maine, 582. Several questions of law are learnedly presented by counsel, but, in our view, there is not a necessity of considering them in the present discussion.
Amendment allowed. Judgment for demandant.
Walton, Danforth, Libbey, Emery and Foster, JJ., concurred.