Derbigny v. Peirce

Martin, J. delivered the opinion of the court.- The order of the Court of Probates for the registry and execution of a will and appointment of a Dative Testatmentary Executor form, a judgment, which must have its effect until reversed by appeal or action of nullity. The plaintiff acknowledges himself to be a debtor of the estate 0£ tjje jate Francjsco Tacón, and alleges that the appointment of the defendant as Dative Testamentary Executor of the deceased, is illegal and void; the testator having left an executor who qualified under the will in the City of Philadel-p^ja . pjace 0f t}le testator’s decease. He prays that the appointment be rescinded ; and that the court make such provision as will enable him to liberate himself by paying what he owes to said estate, to some person duly authorized to receive it. The defendant answered that besides being dative executor as aforesaid he is the attorney in fact of the executor under the will, who resides in Philadelphia; and as such is authorized to receive the money and grant a full discharge of the debt and mortgage. The Court of Probates considered this action as one of nullity, and declared that it was unable to perceive any ground of nullity; dismissed the suit. The plaintiff appealed. The counsel of the plaintiff contends; 1. That the pretended testament, offered in evidence, is nothing but a copy of a transaction made in Philadelphia of an instrument of writing purporting to be a testament. 2. That the testament or a copy with the necessary authentication can alone be received in evidence ; and that neither a translation or a copy of a translation made out of the state, can be considered as legal evidence in our courts. 3. The Probate Court had no evidence before it upon which to order the execution of the will; nor to appoint a dative testamentary executor. It appears to us that the order for the registry and execution of the will, and the appointment of a dative testamentary executor, form a judgment which must have its effect until it he reversed by appeal in this court; or in an action of nullity in the Court of Probates. The plaintiff has resorted to the last mode ; and the Court of' Probates has correctly concluded that he has mistaken his remedy. The original judgment sought to he set aside, in the present suit, is not appealed from. We [553] therefore cannot attend to any objections to its correctness or legality. An aot¡on of nullity will not some one of the bounds1 men-j-oned the Code of Practice. The judgment in the action of nullity is the only one before us. The legislature has spec'Tjy enumerated in the Code of Practice, the grounds on which a judgment can he declared null by the court which had rendered it; C. Pr. art. 606, 607 and 608. The nullity sought is not enumerated in any .of the aboye articles, and the grounds set forth do not exist in the case beforeus. The plaintiff required the Court of Probates to make some provision-for his liberation from the debt by a valid < payment which he declared he was ready to make. Had he pointed out a specific provision he might have called on us to say whether the court erred in refusing to make it. The court was not bound to select any, on a general proposition for relief. He would not have been assisted by the reversal of the judgment of the Court of Probates. It is therefore ordered, adjudged and decreed that the judgment of the Probate Court he affirmed with costs.