
    John G. More, Adm’r, Resp’t, v. Victor Finch et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 30, 1892.)
    
    1. Executors and administrators—Action bt—Defense of prior appointee.
    Plaintiff, as administrator, brought action to recover the value of a horse which was owned by plaintiff’s intestate at the time of his death. In defense, the defendants showed that prior to plaintiff’s appointment as administrator the widow of deceased was, upon petition, appointed administratrix by the same surrogate, and that no order had been made revoking the same. ■ Held, that plaintiff could maintain the action; that the validity of his letters could not be contested in this action.
    U. Same—Admissions—When binding.
    Admissions by executors or administrators are not binding against the estate, unless made while engaged in their representative capacity in the performance of a duty to which the admissions were pertinent, so as to make them part of the res gestee.
    
    
      Appeal from a judgment entered in Delaware county, February 20, 1891, upon the verdict of a jury at the Delaware circuit in favor of plaintiff for eighty dollars; also from an order of the Broome special term, entered in Delaware county, February 13, 1892, denying a motion for a new trial made upon a case and exceptions.
    
      Marvins & Hanford, for app’lts; H S. Sewell and A. Neish, for resp’t.
   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 Mellenix, 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 óf the controversy.

It appeared that the widow was a minor, being at the time of the trial about eighteen 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 afterward, and prior to April 2, 1890, she for valuable consideration sold the horse to one A. L. Brown, who on 2d April, 1890, executed to the defendant Victor Finch a chattel mortgage thereog, 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; 37 St. 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 § 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, nor did the court below hold, that the defendants would 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 rulthe 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 ; 36 St. Rep., 461; 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.

Hardin, P. J., and Martin, J., concur.  