5 Barb. 449 | N.Y. Sup. Ct. | 1849
The evidence of the residence of the subscribing witness to the administrator’s bond, in the state of Virginia, was sufficient to authorize proof of his handwriting, and proof of his hand-writing was evidence of the execution of the bond by the obligors. Where the subscribing witness to a deed or other written instrument is out of the jurisdiction of the court, proof of his hand-writing is sufficient evidence of the execution of the deed or instrument, without any proof of the hand-writing of the parties therein named. (1 Phil. Ev. 473, 4, 5. 11 Wend. 98, 99, 115, 123. 13 Wend. 183, 196.) The information of the residence of Stoutenburgh, the subscribing witness, in the state of Virginia, was derived from
The revised statutes (2 R. S. 116, § 20; Act of 1830, ch. 320, p. 116, 1st ed. and p. 178, 3d ed.) provide that whenever an executor, &c. shall refuse or omit to perform any decree made against him by a surrogate, &c. for rendering an account, or upon a final settlement, or for the payment of a debt, legacy or distributive share, such surrogate may cause the bond of such executor, &c. to be prosecuted, and shall apply the moneys collected thereon in satisfaction of such decree, in the same manner as the same ought to have been applied by such executor, &c. This provision does not require the service on the executor or administrator of a copy of the decree, or a citation to appear and show cause why an order for the prosecution of the bond of the executor or administrator should not be made, previous to the making of any such order. If it is made to appear satisfactorily to the surrogate, that there has been either a refusal or an omission to perform the decree, he is authorized to. order the prosecution of the bond, without any previous service of a copy of the decree, or of a summons on the executor or administrator to show cause. The order proved on the trial
The motion for a new trial must be denied.