Rosella E. Seaman, Appellant, v. William Jamison and Reuben Freeman, as Executors, etc., of Mary A. Jamison, Deceased, Respondents

Rosella E. Seaman, Appellant, v. William Jamison and Reuben Freeman, as Executors, etc., of Mary A. Jamison, Deceased, Respondents. Second Department, October 6, 1911. Pleading — action against executors — sufficiency of allegations as to defendant’s capacity. An executor to whom letters have been duly issued will be presumed to continue to hold office after seven months have elapsed, just as the continuance of life is presumed. Where the complaint in an action against executors alleges that letters testamentary were duly issued to them it is unnecessary to gather into a common allegation a negative to every cause that could divest such persons of their office as executors, and a demurrer to the complaint on the ground that the capacity of the defendants to be sued as executors is not sufficiently alleged will be overruled. Appeal by the plaintiff, Rosella E. Seaman, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of. the clerk of the county of Kings on the 14th- day of February, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining-the defendants’ demurrer to the amended complaint. James J. Fitzgerald, for the appellant. Edward B. Bloss, for the respondents. [MAJORITY — Thomas, J.:] Thomas, J.: The demurrer raises the question of the capacity of the defendants to be sued as executors. The" letters alleged to have been issued could not have been so issued unless the recipients had taken and filed oath to discharge the duties of the office. (Code Civ.' Proc. § 2594.) Hence, the oath was an acceptance of the office. These letters are conclusive evidence of authority of the grantees until revoked or the decree granting them shall be reversed (§ 2591), and meantime they have “ sole and exclusive authority, as executors or administrators, pursuant to the letters ” (§ 2592). In this case the letters are proffered as evidence that the persons named are executors in authority. They are the “ conclusive evidence” of that fact, save in case of revocation or reversal, as provided by section 2591. If the case should come to trial, the letters would be sufficient evidence that the defendants were the executors.- It would not be -necessary to prove that they were alive, that they had not been removed, or that the decree appointing them had not been reversed. Continuance in office from the time of appoint ment, August 13, 1909,. to the time when the complaint herein was verified, March. 29, 1910, would be presumed, as the continuance of life would be presumed, and as the estate could not under the law be expectably closed in seven months and sixteen days, and revocation for the cause mentioned in section 2685,- etc., would not be presumed. The defendants by their demurrer demand that the complaint, which pleads all necessary to invest certain persons with office, and their acceptance of it by taking oath of office, shall gather in á common allegation a negative to every cause that could divest such persons of office, although the statute states that the office shall continue pending revocation of the letters (§ 2592), and, of course, this presupposes continuance of life. The statute means what it says, and it is not necessary to broaden or to strengthen it by denials that events that could terminate the authority have not happened. The interlocutory judgment should be reversed - and the demurrer overruled, with costs, with leave to defendants to plead as they shalT.be advised within twenty days after entry of order herein, and upon paying costs of the appeal and of the demurrer. Burr, Carr, Woodward and Rich, JJ.,- concurred. Interlocutory judgment reversed and demurrer overruled, with costs, with leave to defendants to plead as they shall" be. advised within twenty days after entry of order herein, and upon payment of costs of this appeal and of the demurrer..