2 Johns. 243 | N.Y. Sup. Ct. | 1807
delivered the opinion of the court.
In England, tjje cognizance of legacies is confined to the ecclesiastical and equity courts; and in no instance have the commpn law courts assumed a jurisdiction in suits for legacies, except upon an express promise by the executor, in' consideration of forbearance. (5 Term Rep. 690. 1 Ventris, 120.) But our statute authorizes legatees, ’ their 1 executors and administrators, to commence fictions in any court of record in the state for the recovery of the sum bequeathed ; and provides, that if the legacy be due, and there be sufficient assets in the hands of the executors, to discharge the debts and legacies, the plaintiff shall recover the amount of his legacy. To entitle a person to the benefit of this provision, it is evidently incumbent on him to aver, and prove, that at the time of the commencement of his action, the executors had in their hands assets sufficient to pay the debts and legacies of the testator. In the present instance, this fact was peculiarly essential to a recovery by the plaintiffs, because, on the death of Petrus Schoonmalcer, the widow, by the will, was entitled to receive the per-
Judgment of nonsuit.