51 N.Y.S. 8 | N.Y. App. Div. | 1898
The plaintiff instituted this action against herself, as executrix, and the Farmers’ Loan and Trust Company, as executor of the last will and testament of William H. Starbuck, deceased, to recover a sum of money alleged to be due her from the estate which she and the trust company represent. The trust company demurred to the complaint upon the grounds (l) tliat it did not state facts sufficient to constitute a cause of action; (2) that the plaintiff did not have the legal capacity to maintain a suit against herself 'as executrix and her co-executor to recover a personal claim. The complaint charged, among other things, that the plaintiff had no adequate remedy at law to establish her claim, and it is urged that this is admitted by the demurrer. A demurrer admits every fact properly pleaded, but does not admit a conclusion of law. (Buffalo Catholic Institute v. Bitter, 87 N. Y. 250; Bogadus v. N. Y. Life Ins. Co., 101 id. 328; United States v. Ames, 99 U. S. 35.) The allegation that the plaintiff has nó adequate remedy at law is nothing more or less than the conclusion of the pleader, and, therefore, is not admitted by the demurrer. But, if it was, it might then be seriously questioned whether a court of equity in this State has or would take jurisdiction of a suit of this character. (Kyle v. Kyle, 67 N. Y. 400; Snyder v. Snyder, 96 id. 88; Hogan v. Kavanaugh, 138 id. 417.) The jurisdiction of the Supreme Court of this State in equity, under the provisions of the Constitution, includes the jurisdiction which was possessed and exercised by the Supreme Court of the colony of Rew York at any time, and by the Court of Chancery in England' on the 4th day of July, 1776, with the exceptions, additions and limitations created and imposed by the Constitution. On the 4th day'of July, 1776, the Court of Chancery in England had no jurisdiction over suits brought by an executor against the estate which he represented, for the reason that such a thing as an executor suing his estate, or interposing a claim against the estate which he represented, was unknown.
The only instance in which the Court of Chancery of England at that time exercised jurisdiction in behalf of an executor suing, were suits brought by an executor against his co-executor for something connected with or growing out of the administration of the estate. Something which inhered to the plaintiff by reason of his official
The judgment should be affirmed,,with costs.
Vah Brunt, P. J., Patterson, O’Brien and Ingraham, JJ.,. concurred.
Judgment affirmed, with Costs.