Allen v. Eighmie

Headnote

Appointment of administratrix — relates bach to death of intestate — ejfeet of on agreements entered, into by administratrix before Tier appointment as such.

Appeal from an order of the Special Term striking out a portion of the defendant’s answer as irrelevant.

On the 8th of December, 1815, plaintiff was appointed admin-istratrix of Philip Eighmie, who died intestate, April 12, 1810.

This action was brought to recover certain property of the intestate taken and retained by the defendant. The latter set up in his answer that, on or about the 16th day of April, 1810, defendant being next of kin to the said Philip Eighmie, deceased, and plaintiff the widow of said deceased, and said deceased dying without issue, entered into an agreement, by the terms of which defendant was to collect the said notes and cheeks belonging to the estate of the said Philip Eighmie, deceased, and from the sums so collected pay all just claims, debts and demands against the said estate, and in favor of parties other than this defendant, and that the sums in his possession, and to recover which this action was brought, were collected thereunder.

This defense was stricken out as irrelevant. Upon appeal, the court at General Term say :

“ The appointment of plaintiff as administratrix of the estate of Philip Eighmie, relates back to the time of death of the intestate. ( Vroom v. Van Horne, 10 Paige, 549.)

The agreement made by plaintiff before ber appointment must, therefore, be held binding, and can properly be pleaded in answer to the complaint.”