Mohn v. King

HERRICK, J. Various questions are raised upon this appeal by the appellants, but it seems to me that the only one necessary to be considered is the one presented upon the defendants’ objection to the reception in evidence, and the refusal to strike the same out of the evidence, of the deed from Peter Seip and Peter Fahrenz to the plaintiff’s grantor. It is said that no question can be raised here, because the defendants did not except to the ruling of the court receiving the deed in evidence. The defendants made their objection, and the court thereupon examined the witness, and it not appearing that the third named executor, Elizabeth Hiller, bad ever qualified, and the deed reciting that the parties named in it as grantors were the surviving executors, the inference from that being that she was dead, the court overruled the objection, and at that time the defendants did not except. Immediately thereafter additional evidence was given from which it affirmatively appeared that Elizabeth Miller had, with the other two executors, qualified and taken the oath of office as executrix, and was living for several years after the execution of the deed. The defendants then again made their objections to the deed, and moved that it be stricken from the evidence, and their objections were overruled and motion denied, and then they excepted thereto. I think this sufficiently presented the objection, and called the attention of the trial court to the fact that the defendants did not assent to its rulings. The power of sale under the will having been vested in the executors and executrix, and the executrix having qualified as such, and being living at the time of the execution of the deed, to render such instrument effectual to pass the testator’s title the executrix should have joined in executing the deed. 2 Rev. St. (9th Ed.) p. 1808, § 112; Wilder v. Ranney, 95 N. Y. 7-12; Whitlock v. Washburn, 62 Hun, 369, 17 N. Y. Supp. 60. The plaintiff relied entirely • upon his record title, and, the deed in question being ineffectual to convey title, the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.