Small v. Cromwell

Decided July 1, 1843

New York Supreme Court · decided 1843-07-01

Ejectment for part of a lot of land in the town of Herkimer. The plaintiffs, R. Griswold and Mary, the wife of Small, are the children of Joab Griswold, who died 20th August, 1811, seized of the premises. He left six children at his decease, two of whom have since died intestate, and unmarried. R. Griswold, one of plaintiffs, was born 22d December, 1800 j Mary, the wife of Small, was born in February, 1809, and married in January, 1829. Defendant proved, -1.

Decided 1843-07-01

¶1By the Court,

Nelson, Ch. J.

¶2The failure to prove that an account of the personal estate and of the debts of the intestote had been presented to the surrogate at the time of the application for the order to show cause why a sale of the estate should not be made, was fatal to the jurisdiction of the officer, and of consequence to the authority of M. & M. Myers to convey to Ethridge. (15 Wend., 449; 19 id., 334; .1 Hill, 130.) And the suit was brought within time after the removal of the disability of infancy under which both the plaintiffs were laboring at the time the title accrued. (1 E. L., 1813, p 185, §2.)

¶3New trial must be denied.