Bugbee v. Surrogate of Yates County — 2 Cow. 471

Majority

p. 471

In the matter of Bugbee against The Surrogate of Yates County.

Headnote

Bugbee anjn_ habitant of the t0n, in the ?°"nty of On- and afterwards YateTwaJ e-reeled including the town of Benton: Held, that the granting administration of tho estate of Bugbee pertained to the surrogate of Ontario, and not to the surrogate of Yates,

W. M. Oliver, moved for a mandamus to the Surogate of the county of Yates, commanding him to grant letters of administration of the goods, &c., of Alva Bugbee, late of the town of Benton, in the county of Ontario, (but now Yates,)to Jesse Bugbee. A. Bugbee died in March, 1821. At the time of his death he resided in the town of Benton, in the county of Ontario. In Februaiy, 1823, the town of Ben

p. 472

"ton, with some other towns, were'erected into a separate C0Unty by the name of Yates. (Law’s sess. 21, ch. 30.) Jn June, 1823, Jesse Bugbee demanded of the Surrogate of Yates county, letters of administration, &c., A. Bugbee having died intestate. The Surrogate doubting his jurisdiction, delayed granting administration till the opinion of this Court could be taken on this subject.

Oliver,

remarked that the only question for the Court would be, whether the Surrogate of Yates has jurisdiction, or whether the granting of letters properly belonged to the Surrogate of Ontario. The Surrogate of Yates did not wish to act unadvisedly; and the question is brought forward in this form with his consent. That the Court would give their "opinion for the instruction of an officer in his duty, even where it is brought forward ex parte, will appear by E. Cook's case, ( 15 John. 183 .)

We think the Surrogate-of Yates has no jurisdiction. The third section of the act relative to the office of Surrogate provides, that Surrogates shall “ have sole and exclusive power to take the proof of the last wills, and grant letters of administration of the goods, &c., of all deceased persons who, at or immediately previous to their death, shall have been inhabitants of the respective counties of such Surrogates, Alva Bugbee was, at the time of his death, an inhabitant of the county of Ontario, and granting letters of administration pertains to the Surrogate of the latter county.

Motion denied.