Legal Opinion

Betts v. Avery

Appellate Division of the Supreme Court of the State of New York

Decided December 12, 1899PublishedCited by 1 opinion

Appeal from trial term, Greene county. Action by Judson A. Betts, as committee of the person and property of Caroline Teats, an incompetent, against Eleanor C. Avery, executrix of the will of John Avery, deceased, and Andrew C. Fancher, impleaded, etc. From a judgment for plaintiff, defendants appeal. Affirmed. On the 7th day of October, 1881, letters of administration on the estate of Maria Teats were granted to Joseph Earl by the surrogate of Greene county.

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Appeal from trial term, Greene county. Action by Judson A. Betts, as committee of the person and property of Caroline Teats, an incompetent, against Eleanor C. Avery, executrix of the will of John Avery, deceased, and Andrew C. Fancher, impleaded, etc. From a judgment for plaintiff, defendants appeal. Affirmed. On the 7th day of October, 1881, letters of administration on the estate of Maria Teats were granted to Joseph Earl by the surrogate of Greene county. John Avery and Andrew O. Fancher became sureties upon his bond. In January, 1883, an accounting was had upon the petition of such…

1Opinion of the CourtHerrick, J.

This is an action against the sureties upon tjie bond of an administrator. The extent of the liability of such sureties has

*527been stated by the court of appeals in the case of Potter v. Ogden, 136 N. Y. 384-402, 33 N. E. 233, as follows:

“Such sureties must remain liable until they can show lawful payment to parties legally entitled to receive it; and, where the sole defense is a merely technical and constructive transfer of liability from the same man in one capacity to himself in another, it is not too much to require that it should be fully and clearly established, so as to leave no doubt of…

2Cases cited1 opinion

  1. Potter v. . OgdenNew York Court of Appeals · 1893

3Cited by1 opinion

  1. Martz v. McMahonSupreme Court of Minnesota · 1911

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