The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-12-20
Decision In Relation to Minor Legatee.
SUPREME COURT SPECIAL TERN.

Before Hon. Judge Roosevelt
Dpc l6.-v Victor Sere and Louis Gon,1lo Sers, IN
fant, By his Guardian od i,em, Us. Henry A. Cot-Mrs
Isabel orsono oFarrel, widow lady residing in the
island of Cuba the owner ut the time OF her death OF
city and State stocks OF New York and Ohio OF
the par value OF sl3 200 the certificates for which
the hands Of Mr. Henry Coit the defendant, In this
city She died At Havana. In July, 1854 leaving will,
by which she gave among other things the above men
toned securities to her nephew Louis Gonzalo Sere The
iegatee being minor his father, Victor sere was APP
pointed his tutor guardian and the estate bequeathed
by the will ofhe aunt has been placed IN his charge as
tutor guardian representative OF his according
TO the laws OF the Island OF Cuba Both have united in
demanding the securities. Mr. Colt demurs to the demand,
various grounds insists principally on the supposed
insuperabe objection that letters Of administration
guard anshp have been taken cut in this state and that
even the foreign executor himself Is no party 70 the suit
stated the face oil the complaint-that the infant
plaintiff as he has right to do q lis and 446
Code 1l5, lilo by guardian duly appointed for
the purpose OF this action. II that statement were
deemed too general the proper course, instead OF demur
ring was by motion make definite The obiec-
ton Of nsufciency in the mode Of statement cannot be
raised by demurrer Under the Code, such objections
mus, be raised before Il at all or be deemed waived II
the statement not well founded in fact the defend
instead Of demurrng TO It's sufccncy, should have
denied is truth Besides, there no danger In allowing
asdt ia the Of the infant; for should judgment
be recovered the 54h rule provides that the guardian
al i1a shr not receive the money property awarded
withou, hrst giving security 70 the inani-a condition
presumed To have been already complied with according
TO .aw A 10 the other branch Of the objection Il is
doubleday the general rule that debts due in this
state 10 dece ased residents OF other States and
countries, can only be sued by executors or sdmi-
Istrators appointed within this state, and sub.
icct a. such TO its authority and control But where
this legacy has been given Of specific
rites the egatec himself may sue for their possession
he have first obtained the assent OF the executor whether
that executor be Of foreign Of domestic origin And
such assent where debts remain unpaid, amatter
OF choice but Of positive obligation not given freely
be compelled-and not given expressly, II can be
implied (Sce the authorities collected IN Jacob Law Die
OF smith and webb. Barb 500 A 10 the executors
assent to the legacy in the present suit is aimitedfor
such s the effect Of demurring-that "Jose Pastor the
sole acting executor OF the will after having duly and e
ay end fulfilled his duties such according to
the laws Of Cuba has been discharge from the Office OF
by the decree OF competent court Of udcauro
OF the Island according the laws thereof and that
such discharge he has TO the knowledge OF the defendant
(CoiD refuses and disclsimad and still refuses, 10
make any claim 10 the stock aforesaid to assume
any further control over the estate In any capacity"
Such statement seems 70 me- in the absence Of any
suggestion Of outstanding indebtedness under the present
liberal code 81 pleading IL sufficient averment, dc
murrer OF the required assent especially when taken In
the property bequeahed TO young Seren other words,
the legacy in question had been regularly according to
the Cuban laws placed in charge Of his fatherthe CO
plaintiff with him" tutor" (thc civil law designation
OF guardan) Of his Assent the part Of the
tor 20 the iegaees taking possession OF the securities be-
queathed not required for Tvs sake, but merely as
an admission or evidence that the property given IL
necessary for the payment Of debts OF the testaor and
NAV therefore rghtfay be the sublec, OF gift The only
substantial question T. there any debtsg In the pre-
instance already shown, none are pretended and
the executor has closed h trust and eenfuy discharged
assume any control over the bequeathed securities, Is
full 90 the legaee IT. then the legaee himself
NAV sue Of what consequence IL II that domestic al
lntraor should be appoiniedS The same which
allows the dispenses with the other domestic ad-
mintraor IL only required with view 10 domestic debts
Property within the jurisdiction y retained when there
arc creditors within the jurisdiction II s with view 10
their n,erests-and with that view only-that domestic
administrator Ia insisted on When the reason Tor tne
rule az in this case cesscs the rule ceases, should
cease Cessante r1hgne cess1t erno creditors no adj
minstraton Defendants demurrer Ovcrrucd, and iudg
10 ~
% the plaintiffs and payment Of such interest a. may have
bee n received thereon.