(concurring).
Although I concur in the result, I do not agree with portions of the majority opinion.
The motion to dismiss the complaint for failure to state a claim (Rule 12(b) (6)) was made on August 19, 1957. The motion was not made upon affidavits and no affidavits addressed to the complaint were ever presented.
On the day of argument of the motion (October 14, 1957) two affidavits, both sworn to on October 10, 1957, were submitted to the District Court. Nothing in either of them attempts to establish facts contradicting the material allegations of the complaint. The first merely recites recording data contained in the Land Records of the Town of Greenwich which revealed that when Amelia Philbrick died, both she and her husband owned real property, and that her husband continued to own such property until his death. The second states that no claim by these plaintiffs was presented within the time limitation contained in the Connecticut Nonclaim Statutes. The plaintiffs did not dispute the veracity of the affidavits, but contended that the facts set forth therein were legally insufficient to sustain the affirmative defenses.
The only conceivable purpose of these two affidavits was to support the affirmative defenses. Yet the majority would appear to hold that the filing of affidavits relating solely to the affirmative defenses by the party who has the burden of sustaining these affirmative defenses and which contain no facts tending to controvert the allegations of the complaint “placed upon plaintiffs an obligation to disclose the merits of their case.”
Giving the most liberal construction to the motion, it was: first, a motion to dismiss the complaint for legal insufficiency; second, a motion to dismiss on the grounds that the complaint on its face revealed that the action was barred by the affirmative defenses of the statute of frauds and of the Connecticut Statute of Nonclaim.
The burden was on the plaintiffs to file a complaint sufficient to state a cause of action and sufficient to withstand attack by way of affirmative defense. This plaintiffs failed to do.
I agree with Judge Smith’s conclusions that the claim is too indefinite and uncertain for specific perfoi’mance and that the part performance alleged is “insufficient to take the case out of the reach of the statute of frauds.”
I also agree with Judge Smith that “the statute of nonclaim does not bar this action so far as it may seek specific performance or to impress a trust on the proceeds of the wife’s transfer to the *61husband.” The statute specifically authorizes executors and administrators “to cite the creditors of the deceased” and “if any creditor shall fail to exhibit his claim” he shall be barred. The plaintiffs here, in my opinion, were not within that category.