Vermilyea v. Beatty

Headnote

A plea of m wnques executor will be allowed, after the plea of the general issue has been pleaded by a defendant executor, where it appears that the testator has not and never had any assets within this state.

Motion by defendants for leave to amend their plea filed, by adding to the plea of the general issue, the plea of ne wnques executor.

It appeared from defendant’s papers, that Ellen Adair Beatty, the wife of the defendant, Theophilus Beatty, was formerly the. wife of Joseph M. White, deceased, of the state of Florida. White, by his last will and testament, appointed Ellen Adair Beatty his sole executrix; she had the will duly proved in Florida, and letters testamentary were granted to her by the court in Florida; but the will was never proved and no letters testamentary were ever issued in the state of Mew-.Yorkto the executrix. The defendants resided in Florida, and there were not and never had been any assets within the state of Mew-York belonging to White. Reasons were assigned by the defendants, why they had not until about 26th of September last communicated to their counsel at New-York these facts; the plea of the general issue was filed on the 9th of September last. This motion was made at last December special term, and denied without prejudice, not on the merits.

In opposition to the motion, it appeared from the affidavit of the plaintiff, that he had been informed, and believed that the executrix had not filed any inventory or accounts of White’s estate or of her proceedings as executrix, nor paid any of the testator’s debts, but, soon after she obtained letters testamentary in Florida, she raised $6,000 on White’s property and effects, and transmitted the amount to a mercantile firm in the city of New-York, and that she afterwards came to the-city of New-York and received that amount of money, and subsequently expended it for her own use; and that he was further informed and believed, that the executrix or her husband Beatty, on her behalf and by her authority, had received in the city of New-York other moneys to an amount exceeding the sum of $4,000, being the proceeds of property of White.