12 Wend. 533 | N.Y. Sup. Ct. | 1834
By the Court,
The case of Jackson, ex dem. Jenkins v. Robinson, 4 Wendell, 436, was very similar to this. The plaintiff in that case claimed under a sale made by virtue of a surrogate’s order. He proved the letters of administration and the application, on the part of the surviving administrator, to the surrogate, setting forth the deficiency of personal assets, and requesting the aid of the surrogate. The several orders of the surrogate, made in pursuance of such application, were also proved. The defendant objected to the sufficiency of the evidence to entitle the plaintiff to recover, on the ground, among others, that it had no.t been shown, otherwise than by the recitals in the orders themselves, that there were any debts due from the estate, or that there was a deficiency of assets to pay the same, or that the personal property had been applied to the payment of debts, and consequently that.enough had not been shown to give the surrogate jurisdiction ; and upon this objection being overruled, he offered to prove affirmatively that it did not appear from the inventory and other papers presented by the administrator to the surrogate, on his application for an order of sale, that any debts remained due from the estate of the intestate, and that it did appear that a lar ge amount of the property of the estate'remained undisposed of. This evidence was excluded by the judge, and upon an application for a new trial, we held that his decisions were correct; that the petition of the administrator to the surrogate for the sale of the real estate, accompanied by an account of the personal estate and debts of the intestate, was sufficient to confer jurisdiction upon the surrogate /