Norris agt. Norris.

The complaint demands as relief that the deeds and bill of sale be adjudged fraudulent and void and that the same be delivered up and canceled, or that it be adjudged that Henry D. Norris holds the title to the property in trust, to allow the same to be applied and disposed of according to the terms and provisions of the will, and that he shall account for the rents, issues and profits received by him from the real estate, and out of the use of any property used by himself since the death of Eliza Wilt, and that he be decreed to pay over the same according to the rights of the parties in interest under such will. The complaint also asks other relief.

Sullivan & Cromwell, for demurrer.

W. G. Choate, opposed.

VAN VORST, J.-Now it seems to me quite clear that the allegations in the complaint, which for the purposes of this hearing the demurrer admits, entitle the plaintiffs to substantial relief. It is, however, objected on the part of the defendant, as a ground of demurrer, that the complaint does not allege that the will has been admitted to probate in the surrogate's court, and that until the will is duly probated this court has not jurisdiction to entertain an action to protect or secure any right or interest in favor of any beneficiary named in the will.

This view may in the end prevail in so far as the personal estate is concerned, for it has been decided that nothing but the probate or letters of administration, with the will annexed, was legal evidence of the will in all questions relating to the personalty (Tarver agt. Tarver, 9 Peters, 174; Armstrong agt. Lean, 12 Wheat., 175).

But the plaintiffs' claim, in so far as the real estate is concerned, depends upon the will itself, and not upon its probate. At most the probate of a will in this state is only presumptive evidence as to real property (Thorn agt. Sheil, 15

Norris agt. Norris..

Abb. [N. S.], 81; Cowen & Hill's Notes to Phil. Ev., 1348).

An omission to have a will probated within four years after the death of the testator exposes the persons interested under the will to loss from a conveyance to a purchaser in good faith from the heir of the person who died seized of the property (Code Civ. Pro., sec. 2628).

To guard against such consequences a probate is needed, but that does not affect the question now considered.

It was doubtless the duty of the defendant himself, an executor named in the will, and having its custody, to have offered the will for probate in view of the infancy of the plaintiffs, but this he seems, from the allegations of the complaint, to have by design omitted.

The defendant also objects that this is an action in the nature of a suit in equity to establish a will, and that for such reason it is demurrable, because the surrogate's court is established to take proof of wills and to admit them to probate.

But in this connection it is to be observed, and I think it is a complete answer to the objection, that the complaint alleges that Eliza Wilt made and executed on the 17th day of January, 1871, her last will and testament in accordance with the laws of the state of New York.

That allegation is admitted by the demurrer, and it is a large concession, for it establishes the fact of a legal will and testament.

That is an admission of the principal fact, through which plaintiffs' right rises, and is, in my judgment, sufficient to sustain the complaint.

Should the defendant, by answer, deny the fact of the will, then a question may arise as to how it shall be proved. But that will be disposed of by the judge upon the trial.

It becomes in this view not a question of pleading, but one of evidence. And I can see no good reason, when the object of probate is considered, why the will may not be offered for

Hazard agt. Harding.

probate at any time before the trial, should the defendant answer upon the merits and put in issue the making of the will.

For these reasons I conclude that there must be judgment for the plaintiffs on the demurrer, with liberty to the defendant to answer on payment of costs.

SUPREME COURT

MOSES B. HAZARD agt. CHARLES L. HARDING.

Pleadings- Complaint― Demurrer - Action to recover damages for abuse of legal process-Sufficiency of complaint -Action may be sustained without proof of probable cause —— Where greater particularity in a complaint is required the remedy is by motion and not by demurrer.

A complaint substantially alleging that the defendants wrongfully sued, arrested and imprisoned the plaintiff for a wrongful or fictitious claim, is not amenable to a general demurrer, as facts are stated constituting a cause of action for damages, for abuse of legal process, which action may be sustained without proof of a want of probable cause.

Special Term, June, 1882.

W. B. Hornblower, for demurrer.

Lucien Birdsey, opposed.

LARREMORE, J.—The complaint alleges that on December 20, 1879, the defendants wrongfully and maliciously contriving, purposing and intending to injure, harass and distress the plaintiff, and to compel him by and through fear and duress of imprisonment to pay and satisfy a wrongful and fictitious debt, wrongfully brought an action against him for the recovery thereof, which was finally dismissed upon the merits. That plaintiff was twice arrested and imprisoned in said action, and has sustained damage thereby in the sum of $20,000 for which he brings suit.

Hazard agt. Harding.

The defendants interpose a general demurrer to the complaint, and ask judgment in their favor.

The action is neither for malicious prosecution or false imprisonment, in both of which an averment of want of probable cause would be necessary. This suit is evidently brought to recover damages for abuse of legal process, and may be sustained without proof of a want of probable cause. It is urged, however, that such an action can only be predicated upon some collateral object, and not where it is to collect the very debt in suit (Granger agt. Hill, 4 Bing. N. C., 212.)

The right to collect a debt does not ordinarily include the right of arresting the debtor. This latter right may depend upon collateral and independent facts and there is no reason why an abuse of it should be tolerated, because such right may be incident to an action of debt.

Where the process of the court is illegally and wrongfully used to compel the surrender of property or rights, a right of action accrues to the party injured (Brown agt. Freter, 7 Wend., 301; Bebinger agt. Sweet, 1 Abb. N. C., 263; Smith agt. Smith, 20 Hun, 555.)

It may also be observed that two arrests in one action seem to be vexatious, and raise a presumption of wrong.

The allegation is that the defendants wrongfully sued, arrested and imprisoned the plaintiff for a wrongful or fictitious claim. This is an averment of a fact and is good pleading under the present practice, which requires a statement of facts and not the evidence of them.

Such an averment meets the requirements of the statute, and if the defendants require greater particularity, their remedy is by motion and not by demurrer.

Judgment for plaintiff upon the demurrer, with leave to defendants to answer on payment of costs.

Hooghkirk agt. President, &c., of the Delaware and Hudson Canal Co.

SUPREME COURT.

WILLIAM HOOGAKIRK, administrator, &c., of ELIZA HOOGHKIRK, deceased, agt. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY.

Action for negligent killing — Damages· When verdict should not set aside as

excessive.

In an action to recover damages for the death of plaintiff's intestate, caused by the negligence of the defendant, it appeared that the deceased was the only child of the plaintiff, a man in moderate circumstances, and was a healthy and bright child, a girl of six years of age, and left her surviving a father and mother, the latter of whom was also severely injured and crippled by the same accident. The jury gave a verdict for $5,000:

Held, that it should not be set aside as excessive.

When the condition of life of the parties is shown, and there is a reasonable prospect of a long and useful life to the party killed, the jury are to estimate the present and prospective damages caused by the death to the next of kin, to be measured according to their best judgment by the actual "pecuniary injuries to such" next of kin The discharge of such a duty, expressly confided to a jury by statute, necessarily, in a case which presents reasonable grounds of conjecture, involves a wide discretion, and unless the evidence shows a plain error, the verdict cannot be disturbed:

Held, further, that, as the "calculations of the damages, based solely upon the circumstances and conditions of the parties, are for the jury, it is impossible, as no fact is proven which shows the verdict to be neces sarily excessive, to disturb the findings of the jury in this case. The following principles held to be established by the cases cited in the opinion:

First. The plaintiff in an action of this character need not show any direct pecuniary loss.

Second. When the circumstances and conditions in life of the next of kin, and the age, sex and mental characteristics of the deceased are shown, it is for the jury to estimate " the pecuniary injuries," present and prospective, to the next of kin.

Third. The court cannot say, as matter of law," in the case of the death of an infant, and no actual loss in dollars and cents shown, "that there is no pecuniary damage in such a case, or that the expense of maintaining the child would necessarily exceed any pecuniary advantage which the parents could have derived from its service had it lived;" and that