
    More v. Finch et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1892.)
    1. Action by Administrator—Validity of Appointment.
    In an action by an administrator to recover assets belonging to the estate, defendants cannot contest the validity of plaintiff’s appointment on the ground that decedent’s widow had been previously granted letters of administration, which have not been revoked.
    2. Evidence—Declabations—Past Transactions.
    Declarations of a widow, who was appointed administratrix of her deceased husband, that she had at some previous time sold a horse belonging to the estate to one under whom defendants claim, are not admissible in an action to recover the same by an administrator subsequently appointed.
    Appeal from circuit court, Delaware county.
    Action by John G. More, administrator of Uriah Mullenix, deceased, against Victor Binch and another. Brom a judgment for plaintiff, and an order denying a motion for a new trial, made on a case and exceptions, defendants appeal. Affirmed.
    ■ Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Marvins & Hanford, for appellants. H. S. Sewell and A. Neish, for respondent.
   Merwin, J.

The plaintiff in this case seeks to recover of the defendants the value of a horse, which was owned by the plaintiff’s intestate at the time of his death on the 7th July, 1889, and which, as plaintiff alleges, was on the 7th April, 1890, converted by the defendants to their own use. The plaintiff, before bringing suit, made a demand of the defendants for the horse, or its value, all which was refused. The plaintiff was appointed administrator on the 8th July, 1890, by the surrogate of Delaware county, upon petition by the proper party, showing all the facts necessary to give the surrogate jurisdiction. In defense the defendants show that prior to plaintiff’s appointment, and on the 19th September, 1889, Daisy Mullenix, the widow of said deceased; was, upon petition in due form, appointed administratrix by the same surrogate, and that the records of his office do not show that any order has been made revoking such letters. The defendants therefore claim that the appointment of plaintiff was void, and that plaintiff showed no title to the subject of the controversy. It appeared that the widow was a minor, being at the time of the trial about 18 years old. The appointment of the plaintiff as administrator was made at her request, she for that purpose asking for the appointment of plaintiff as her general guardian. He was so appointed, and then, as such, upon proper papers, was appointed administrator. The widow, in her. petition, stated, among other things, that prior to that time no letters of administration had been applied for or granted, so far as she knew. The defendants, in their answers, deny the appointment of the plaintiff, but do not allege the prior appointment. They set up that all the property left by the intestate did not exceed $400; that all of this became, at the death, the property of the widow as such, and that she took possession claiming to be owner; that afterwards, and prior to April 2, 1890, she, for valuable consideration, sold the horse to one A. L. Brown, who on the 2d April, 1890, executed to the defendant Victor Finch a chattel mortgage thereon, and that defendants hold under that mortgage. The court held that the plaintiff could maintain the action, and that the validity of the letters issued to plaintiff could not, in this action, be contested by the defendants. In Power v. Speckman, 126 N. Y. 354, 357, 27 N. E. Rep. 474, it was said of a similar situation that the order of the surrogate, making a second appointment while the first stood unrevoked, was not void, or without jurisdiction, because of the previous appointment; that that fact simply made it erroneous or irregular, and liable to be reversed on appeal or vacated on a proper application; and that in the latter case, if the second appointee could furnish some lawful reason for the revocation of the prior letters, they might have been revoked, and his own authority permitted to stand. If the surrogate had jurisdiction, then, under section 2591 of the Code, the letters to plaintiff were conclusive evidence of his authority. He, in this action, sought to recover of the defendants a portion of the assets of the estate, after himself making of them a proper demand. We think that the court below did not err in holding that the plaintiff could maintain the action, so far as his appointment was concerned. It would not, however, follow from this, not did the court below hold, that the defendants wquld be precluded from justifying their action through some act of or transaction with the first administrator within the line of her apparent power. Upon the evidence there is some question whether the horse was included in the mortgage under which the defendants claim. The description of the property in the mortgage would seem to exclude it. Be that as it may, the defendants failed to show that the widow ever sold the horse to the mortgagor. Upon this subject, however, the defendants offered to prove the declarations of the widow after her appointment as administratrix, and before plaintiff’s appointment. These were objected to as incompetent, and not binding upon plaintiff, and were excluded. In this ruling the defendants claim error. The declarations offered had reference to a past transaction, and were, in substance, that she had at some previous time sold the horse to the mortgagor. These were not admissible against the plaintiff, within the rule laid down by the court of appeals in Davis v. Gallagher, 124 N. Y. 487, 26 N. E. Rep. 1045. See, also, 2 Whart. Ev. § 1199; Pease v. Phelps, 10 Conn. 62, 68. There is no basis in the case for an estoppel. The judgment is for the value of the horse as found by the jury. We find no good reason for disturbing it.

Judgment and order affirmed, with costs. All concur.  