Beach v. King

17 Wend. 197 | N.Y. Sup. Ct. | 1837

By the Court,

Bronson, J.

The exceptions taken to the plea are, 1. It ia not alleged that letters of administration were granted to the defendant nor any letters of administration brought into court; and 2. It does not appear by whom the defendant was appointed administrator, nor whether he was appointea under the laws of this state.

The defendant can not be administrator, unless letters of administration of goods, chattels, and credits of the intestate, has been granted to him by one of the surrogates of this state (2 R. S. 73, § 23, 24). The proper mode of pleading the fact, is by a direct allegation that such letters were granted. The defendant has not pursued that course, but pleads that he was duly appointed administrator. This allegation consists partly of matter of fact and partly of matter of law, and is not capable of trial. That the defendant was appointed administrator by somebody, or in some form, is a question of fact; but whether he was duly appointed or not, is a question of law. The defendant should have stated hoto he was appointed, and then the court could determine its sufficiency upon demurrer, or if an issue to the country were joined upon the fact of having obtained letters, the question could be tried by jury.

This case is like that of The Abbot of Strata Marcella (9 Co. 24), where the defendant pleaded that he lawfully enjoyed the goods of felons; and the plea was held had, because it “ tends to matter in law which is not inquirable by the country.” Lord Lisle’s case is cited by Coke, where a man was bound in a bond, and the condition was that he should come to B, on such a day, and there show the obligee a sufficient discharge of an annuity. The defendant pleaded that at the day he offered to show a sufficient discharge; and on demurrer the plea was adjudged bad, for it ought to have alleged “what manner of discharge he offered to show, viz., are lease, or a unity of possession, or other matter of discharge, upon which the court might judge of it was suffi[199] cient or not; for the country shall not inquire of it, but it ought to be adjudged by the court, which the judges can not do, if the special matter be not showed to them.”

The objection is taken by special demurrer, and must prevail. It is unnecessary to inquire whether the plea is bad for not making proferí of the let-, ters of administration.

Judgment for the plaintiff