Chew's Administrator v. Travers

¶1declared the opinion, confirming the nonsuit, on the same ground on which it had been advised by the District Court; namely, that the defendant, by pleading over to the action, although it was an admission of the right of the plaintiff to sue as administrator generally, did not thereby preclude him from giving in evidence a fact not inconsistent with that admission, viz., that Drury Chew made a will, by which an executor .was appointed, who accepted ; and that the property in question had been administered by him, or that the administrator had no right to recover it, inasmuch as there was'an executor who was entitled to the administration, or who had already administered the property ; and that it may be easily conceived, that an administration may be granted, though there may be an executor appointed, who may afterwards accept the appointment ; as where a will is found after administration granted, or where administration is granted during absence.