60 N.Y. 121 | NY | 1875
Proof of the death of John Carroll, the testator, was absolutely essential to entitle the plaintiff, who claimed that she was his widow, to recover in this action. The only evidence of Carroll's death was the record of the *123 probate of his last will and testament, made before the surrogate of the county of Kings. This was received after an objection made, and the judge charged the jury, that it was prima facie evidence of the death of Carroll, and being undisputed and uncontradicted was conclusive upon that question. The judge was in error in both of these decisions named, and I think that the exception to the evidence and the charge were each well taken.
Letters testamentary and of administration are conclusive evidence of the authority of the persons to whom granted, and are sufficient to establish the representative character of the plaintiff who assumes to sue by virtue thereof. (2 R.S., 80, § 56; Belden v. Meeker,
The object of this provision was to make the certificate of the surrogate and the record of the will, or exemplification primafacie evidence only. (Vanderpoel v. Van Valkenburgh,
It will also be noticed that this is a case where the claim of title is made to real estate in an action of ejectment, to recover the same where more strict proof is required than in cases where the question arises incidentally and collaterally. (See 2 Greenl. Ev., § 27; 2 Ph. Ev., 93.)
In the views expressed, it is not intended to hold that cases may not arise where lapse of time and other circumstances may not make letters testamentary, and the proceedings accompanying the same, which have been had upon the proof of a will, competent evidence as ancient records, or from the lapse of time which has ensued since the probate (Doe ex dem. Ash v. Calvert, 2 Camp., 387); but in cases presenting the features of the one now considered, where the death is recent and the action brought so soon after the will was proven, and the alleged decease of the testator, it is enough to hold that the evidence introduced was not sufficient to establish his death, and that it must be proved otherwise.
Although all of the defendants but the infants admit the death of the testator, it is not enough to entitle the plaintiff to maintain the action. She cannot recover of all of them without proof of the testator's death, and it is apparent that she cannot in this action recover as to those alone who admit the death.
For the error of the judge upon the trial the judgment must be reversed and a new trial granted.
All concur.
Judgment reversed. *126