
    Jacob Brenner and Annie F. Doyle, as Executors, etc., of Ellen McMahon, Respondents, v. Alice McMahon, Appellant, Impleaded with Others.
    
      Complaint in foreclosure — allegations showing that executors have legal capacity to sue.
    
    Where the complaint in an action brought by executors to foreclose a mortgage belonging to the estate of their testatrix, after stating the execution and delivery of the bond and mortgage to their testatrix, a default in payment, the date and place of her death, the admission of her will to probate by, and its record in the Office of, the proper surrogate, further alleges “.That in and by said last ’ will and testament the said Ellen McMahon (the testatrix) duly appointed these plaintiffs to be the sole executors and trustees thereof, and on the said 15th day of February, 1896, letters testamentary were duly issued to these plaintiffs, who had duly qualified as such on the same day,” it sufficiently appears from the complaint that the plaintiffs have legal capacity to sue, although there is no specific allegation that the plaintiffs were appointed, or that letters were issued to them, by any surrogate.
    Appeal by the defendant, Alice McMahon, from an interlocutory judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 25th day of May, 1897, upon the decision of the court, rendered after a trial before the court without a jury, overruling her demurrer to the complaint.
    
      
      John McCrone, for the appellant.
    
      Jacob Brenner, for the respondents.
   Bradley, J.:

The action, as appears by the complaint, was brought in the County Court of Kings county for the foreclosure of a mortgage of date March 20, 1895, made by John McMahon to the plaintiffs’ testatrix (who at the time of her death was the wife, of the mortgagor), upon certain real property situated in that county, to secure the paymant of $14,000, with interest, on the 20th day of March, 1896, according to the condition of his bond of the like effect and of the same. date. '

The plaintiffs alleged the execution and delivery of the bond and mortgage by the defendant John McMahon to the plaintiffs’ testatrix and his default in payment; and further alleged that “ on the' eighth day of February, 1896, the said Ellen McMahon died at the city of Brooklyn, leaving a last will and testament, dated February 3, 1896, which was duly admitted to probate by the surrogate of the county of Kings on the 15th of February, Í896, and is recorded in the office of said surrogate in Liber 212 of Wills, page 362. That in and by. said last will and testament the said Ellen McMahon duly appointed these plaintiffs to be the sole executors and trustees thereof, and on the said 15th day of February, 1896, letters testamentary were duly issued to these plaintiffs, who- had duly qualified as such on the same day.”

The appellant’s demurrer to the complaint is : (1) That the court has no jurisdiction of the person of the defendants; (2) that the complaint does not state facts sufficient to constitute á cause of action ; (3) that. the plaintiff’s have not legal capacity to sue. The first ground is disposed of by the allegation to the effect that the mortgaged premises are situated in the. county of Kings. (Code' Civ. Proc. § 340, subd. 1.) The bond or obligation of the defendant John McMahon, his mortgage as a security for the payment of the amount and his default are sufficiently described and alleged for the purpose of the relief sought.

The main question urged on the part of the defendant arises upon the allegation relating to the appointment' of the plaintiffs, as executors and their authority to assume that relation in this action. The making and the probate of the will of the testatrix are well alleged, as is the fact that by it she appointed the plaintiffs to be the executors thereof. The averments which then follow, that letters testamentary were duly issued to those plaintiffs, who duly-qualified, were, in the view taken of them, sufficient to the effect that they were clothed with the authority of that relation. Executors derive them authority from the will of their testator. (Hart-nett v. Wandell, 60 N. Y. 346.) But the evidence of it is dependent upon the probate of the will and the issuance to them of letters. Before that is done, they have, in this State, no power to dispose of any of the estate except to pay funeral charges, nor to interfere with it further than is necessary for its preservation. ' (2 R. S. 71, § 16.) And every person named in a will as executor, and not named as such in the letters testamentary, is deemed to be superseded thereby. (Id. § 15.) It is, therefore, necessary, in support of the authority of an executor, to do any act as such beyond what is necessary to preserve the estate of his testator and the appropriation of that required for funeral expenses, to have letters. ■»

In this case it is alleged that letters testamentary were duly issued to the plaintiffs, and that they had duly qualified as such on the day named. The insistence of the defendant’s counsel is to the effect that there is no allegation that they were appointed as' executors, in any proceeding before the court, by any surrogate, or by the determination of any surrogate, or that letters testamentary were duly issued by any surrogate. It is true that the averments as to the letters are not as full and complete as they very properly may have been, but, taken with the allegations relating to the making of' the will, .'appointing the plaintiffs as executors, and the admission of the will to probate by the surrogate of Kings county, those which, in that connection, followed to the effect that letters testamentary were duly issued to them, and that they duly qualified, have the requisite support to render them effectual. (Code Civ. Proc. § 532.)

The case of Secor v. Pendleton (47 Hun, 281) does not necessarily apply to the question here. The averment, there, that letters of administration were duly granted to the plaintiff, etc.', was barren of support by any allegation that the intestate died having property in the State, or that letters of administration had been issued upon his estate by any .surrogate having authority 'within this State. There is a difference in the. source of power of an executor and an ■ administrator. While the former derives his power from the will, the latter, in his relation as such, is created by the court andderives ' •his authority from the law. His appointment is dependent upon a situation and a. state of facts to he made to appear in a proceeding instituted for the purpose. In the .present case, the" letters testamentary, alleged "to have been duly issued, were' legitimately the result of the alleged admission "of the will to probate by the surrogate of Kings county on the same day. And the construction of tlie allegations, fairly permitted and required, is, that the letters ■ were issued in the same proceeding in which the will was admitted to probate. ..

These views lead to the conclusion that the interlocutory judg- " ment .should be affirmed^ with leave to the appellant to answer on payment of costs.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to appellant to answer within twenty days, on payment of costs of demurrer ' and of this appeal. •  