1 N.J. Eq. 331 | New York Court of Chancery | 1831
The first ground of demurrer in this case is, that the complainant has not by his bill alleged or set forth that he has duly proved the will of the said Medcef Eden, nor that he has duly qualified as executor to the said will in the state of New-Jersey.
It may be admitted as a principle, and was not at all disputed on the argument, that a probate granted in one state, cannot be used in the courts of another. It is too plain to require illustration : 1 Cranch, 258, 282; 3 Cranch, 219; 9 Cranch, 151; 3 Mass. R. 514; 1 Pick. 82; Toller, 72; 3 Mason, 472; 4 Mason, 19. The only questions that can be made, are these :
1. Is it necessary to allege in the hill the granting of probate ?—and if so,
2. Is it properly alleged in the present bill ?
On the first point, I am satisfied that it ought to appear by the bill that the party has authority to sue in the character of executor ; and that it will not answer to rely on proving the fact at the hearing of the cause. The omission of such allegation has often been the subject matter of a demurrer ; and I think, that from the cases themselves, as well as from the reason of the thing, there can be no doubt as to the correct course to be pursued.
In Humphreys v. Incledon, 1 P. Wms. 753, a bill was brought by an executor for the recovery of assets, and it did not appear that he had proved the will. The defendant demurred, because it did not appear by the bill that the plaintiff had proved his testator’s will in any court, and Ld. Macclesfield allowed the demurrer; and such was admitted by the register to be the prac
I believe that this question has been up heretofore in this court, in the case of the Executors of Clymer v. James, Ridgeway and al.; and it was then held necessary that it should appear on the bill that the probate had been granted. I am not sure that the decision did not go further, but what I have stated of it is sufficient for my present purpose.
The old authorities cited at the bar, are not essentially at variance with what [ take to be correct principle. In Fell v. Lutwidge, 2 Atk. 120, it appeared upon the investigation that the administration was not actually taken out until after the filing of the bill; yet, having procured it before the cause came to a hearing, it was held sufficient in equity, though not good at law, because the defendant there might crave oyer of the letters. But it is to be considered that it ivas charged in the bill that letters of administration had been taken out, and therefore the complainant was entitled to a demand against the defendant. This was not denied by the answer. The bill was good on the face of it, and the proof necessary to establish the facts charged, was held sufficient in equity, by relation. The case of Humphreys v. Plumphreys, 3 P. Wins. 350, is not in point. There a bill was filed for an account of personal estate. The person having the right to administer on the estate was a party, but administration was not actually taken out. The bill was demurred to on
In Osgood v. Franklin, 2 Johns. C. R. it was objected that the complainants produced, as their authority to sue, letters testamentary from the state of Pennsylvania, and that they were of no force in another state. In answer to which, the court remarked, that the production of a probate recently taken out in New-York, cured that defect; and added, that “ it seems to be pretty well settled that where no objection is raised by pleading, a probate taken out at any time before the hearing, is sufficient in this court.” The same doctrine is held in Goodrich v. Pendleton, 4 Johns. C. R. 549, and Doolittle v. Lewis, 7 Johns. C. R. 51.
The conclusion is, that it is necessary to set forth in the bill the fact of the probate of the will.
The next inquiry is, whether in this case the matter is sufficiently alleged. The complainant says, that he hath taken upon himself the burthen of executing the trusts and duties required of him by the will, and become duly qualified as executor. Now this may all be true, and yet the party have no right to come into this court in the capacity of executor. It appears on the face of the proceedings, that Medcef Eden, the testator, lived in West-chester, in the state of New-York. Rachel Eden resided in New-York. The assets were in that state, and the will was proved there by Rachel Eden. If, then, John Pelletreau, who is also a
The object of requiring the complainant to set out in his bill, that he has proved the will, is a single one; that the court may see he has right to appear there in a representative capacity. It ought, then, to be set forth in such way as to satisfy the court of that fact. It should not be left to inference, especially where the natural and just inference, (as in this case,) would lead to a contrary conclusion. In the case of Armstrong v. Lear, already cited from 12 Wheaton, the court said expressly, that it should appear on the face of the bill, that the will had been regularly proved in the orphan’s court of the very district in which the suit was brought; and for the want of that fact appearing, the whole proceedings were arrested.
It has been held unnecessary, in England, to allege in the bill in what court the will was proved. If proved within the kingdom, it will be sufficient. And by parity, if it be stated that the will has been duly proved within the state of New-Jersey, it might be sufficient, without specifying whether such proof was in either of the orphan’s courts, or before the ordinary.
I incline to follow the case in Wheaton ; not only on account of its high authority, but on the plain principle, that if it be necessary to make the allegation at all, (and that it is, I cannot doubt,) it should be made in such way as fully and substantially to answer the objects for which it is intended. In this particular the bill, more especially as a bill of revivor, in which the party is supposed to set out specifically his right to represent the former complainant, appears to me defective p and as to this part of it, the demurrer is well taken, and must be allowed.
The second ground of demurrer is, that the bill is multifarious ; and it may be expected that something will be said on that head.
The original bill was filed by Rachel Eden. She was the ex-, ecutrix of Medcef Eden the younger, and also a devisee in trust under the will of said Medcef Eden. Part of the rents and profits demanded in the bill, accrued in the life time of the testator :
But it is said, that Pelletreau comes in a character which is not a representative character; that he styles himself not only executor, but devisee in trust of all the real and personal estate of Medcef Eden the younger. That he does so style himself in the commencement of the bill, is true ; but I do not find that he relies in any degree in the supplemental part part of the bill, on any rights he may have as such devisee in trust. After setting out the facts, that he had become duly qualified to act as executor of the will of Medcef Eden, deceased ; and that he had taken out letters of administration on the estate of Rachel Eden, deceased; he states that by virtue of the premises, he has taken upon himself the burthen of executing the said will upon the trusts therein expressed, and hath become entitled to revive the said action, so as aforesaid commenced against the said John Rathbone, by the said Rachel Eden, deceased. He does not state, that under this bill he is entitled to come in claiming originally as a devisee in trust. Whether he will so claim, is a matter which the court cannot now determine; and it would be harsh to allow a demurrer simply on the ground that a party coming properly into court as an executor, had also styled himself a devisee in trust.
It is presumed that the question here sought to be raised, may' more fairly and properly be brought up in another stage of the cause, when the views of the complainant shall be more fully de
At present I feel it my duty to say, that, as to the last ground, the demurrer is not well taken ; on the first ground, it must be allowed.
Demurrer allowed.
