In re Carter

This matter comes before the surrogate upon a petition by a sister of the deceased, as sole next of kin, for

Incidentally the sister now repudiates the action of.her former attorney who appeared in the proceeding which led to the discovery and production of the said testamentary paper, and she desires not to be estopped by such proceeding from claiming that the said instrument so produced, at her instance, is not the last will and testament of the said Edward Carter, deceased. If the sister is to maintain at the proper time the allegation that the paper so produced is not the ■ will of the deceased, she cannot now go forward with a petition for its probate, and this she pleads. On the other hand, the widow wholly neglects to proceed with the probate of the paper so produced. Thus there is no one acting affirmatively toward a probate. It has been held that a probate cannot be'decreed in a proceeding for an administration. Matter of Gould’s Will, 9 N. Y. Supp. 605 ; Matter of Taggard, 16 id. 629 . So an independent ' proceeding to probate is jurisdictional. It is also the general opinion that the

What ought the surrogate now to do under the circumstances % If the surrogate can initiate no proceeding looking to the probate of a testamentary paper, although it is in his very custody, as it were, his- jurisdiction has certainly grown very defective. But upon this point I will not now pass.

I proceed to the consideration of the merits of the application for án administration. That the deceased cannot rightly be sworn in this court to die intestate, when it appears that he left a testamentary paper purporting to be his will, I have no doubt. In a similar case a great probate judge of England, Sir John Uicholl, stated there could rightly be no sworn allegation of intestacy, where there was an allegation of a will, and he held that a plenary administration was impossible under such circumstances. In the Goods of Sir Theophilus John Metcalfe, 1 Add. Ecc. 343.

That the surrogate may stay proceedings for administration when a will is alleged is tolerably clear from domestic precedents. In Isham v. Gibbons, l.Bradf. 69, 71, Surrogate Bradford stayed an application for letters of administration where a will was alleged, but in order to afford an opportunity for ancillary probate in this jurisdiction. In 1887, in the Estate of Henry Kimmel, Deceased, on an application for letters of administration where there was an allegation of a will, Surrogate Hollins held that if the beneficiary declined to propound the will he would permit the petitioner to inquire into this matter in the same proceeding, and if it. was" discovered that the deceased left no will letters would issue. In 1888, in the Estate of Philip Schuster, it appeared by the answer of the respondent, in opposition to an application for an administration, that there was a will on file in this-court and also that the petitioner for administration, had

In 1903, in the Estate of John Jones, my immediate predecessor, Surrogate Thomas, under similar circumstances, held as follows: “ The right of the petitioner to have a legal representative of the decedent appointed to represent him in the pending litigation, in the Supreme Court, is not seriously disputed. The paper on file in this court purporting to be a will of the decedent does not prove itself, and can "only be established as a will in a proceeding for that purpose and on competent proof of its due execution. Matter of Cameron, 47 App. Div. 120 ; affd. 166 N. Y. 610 . The petitioner does not admit the validity of the paper, and I cannot require him to become the moving party in a proceeding to refute his own contentions relative to it. Letters of administration will issue to the petitioner, or his nominee, at the expiration' of twenty days from the date of the order to be made on this memorándum, unless proceedings for the probate of said paper shall be commenced and á citation therein issued and served on the petitioner herein within that time. The amount of the bond, in case letters, "of administration are issued, will be fixed at $250.” The administration was to be géneral and not.limited under this decision of Surrogate Thomas.

A stay of the proceeding for administration until" the will be offered for probate is not sufficient- relief to the petitioner in this matter, for the widow may never proceed to probate, and. in that event the petitioner would suffer unjustly. Recognizing this fact the surrogates have in other cases granted other relief in the alternative, which I shall now consider.

It has, since the decision of the Appellate Division in Kirwin v. Malone, 45 App. Div. 93 , become the custom of

It is now generally assumed by many excellent practitioners in this court that the surrogate can grant a limited administration only in the single case provided by the statute. Code Civ. Pro., § 2664. Oan it be that the power to grant and revoke plenary administration vested in the surrogate, Code Civ. Pro., § 2472, precludes the surrogate from the exercise of the power to grant a lesser or limited administration, according to the long established precedents in the courts whose jurisdiction has now devolved on the surrogates? Has the surrogate’s power in this respect become less than that of his predecessors in this State under similar grants of jurisdiction? Were I to have exclusive reference to the opinion of the Court of Appeals in a well considered case I should decline to think so. In Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 70 , 74, that eminent court discusses generally the power of the surrogate to issue qualified or limited letters of administration, and states: “ In all matters relating to estates the court proceeds in accordance with established usage as modified by statutory enactment. In the English practice letters of administration are granted, limited to certain effects of the deceased, while the general administration is committed to another. Also administration is sometimes granted in reference to a particular fund and to defend proceedings in chancery * ' * "x" We think it rests with him (the surrogate) to say, in the exercise of his dis

Since this decision there has, however, been an adjudication'of the Appellate Division for the third department which for reasons there expressed takes a more restricted view of the surrogates’ power at present to decree a limited administration, and to this decision I, of course, must defer. Kirwin v. Malone, 45 App. Div. 93 . And see Estate of Mallon, 13 Civ. Pro. 205. I should have preferred to follow the opinion of the Court of Appeals in the earlier decision first cited, as it seems to me to take a more comprehensive and accurate view of .that old jurisdiction over intestate estates which was intended to be vested in the modern surrogates.

I conceive it to have been stated by the Court of Appeals in substance, in the case of Martin, that the general grant of probate jurisdiction and jurisdiction over the estates of in-testates is to be taken with reference to established “ usage.” In this phrase the Court of Appeals had reference to the usage established in the earlier probate jurisdictions of this State, now transferred to the existing surrogates. The jurisdiction of the former courts of probate of Mew York was well defined, and within its proper sphere it was binding and authoritative on all. other courts. Herst v. Beach, 5 Madd. 351. As far as such jurisdiction over .administrations and probates went, it was a recognized, a complete and an efficient jurisdiction of great antiquity, with features fully understood. I should have thought the present probate and administrative jurisdictions-¿none the less extensive within the scope which is clearly granted by statute had it not been for the decision of the Appellate Division in Kirwin v. Malone.

A probate jurisdiction and a jurisdiction over intestates’ estates are of long and uninterrupted continuance in Mew York, and while the very ¡existence and the jurisdiction of the present surrogates are now due wholly to the statutes of the sovereign" authority,'which they represent, and which creates them, the surrogates’ exercise of the jurisdiction thus

Prior to the Revised Statutes the probate jurisdictions of Yew York proceeded as near as might be to the practice and the procedure of the ecclesiastical courts of England, in so far as that practice and procedure were established before the independence of New York. Goodrich, v. Pendleton, 4 Johns. Ch. 549 , 552; Vanderheyden. v. Reid, 1 Hopk. Ch. 408 , 411; revd., 5 Cow. 719 ; Bogardus v. Clarke, 1 Edw. Ch. 266 , 267; 4 Paige, 623. While the present surrogates have only such jurisdiction as .is conferred by statutes, they have in addition such incidental powers as are necessary to the exercise of the jurisdiction thus conferred. Matter of Camp, 126 N. Y. 390 ; Matter of Runk, 200 id. 447, 456 .

In the exercise of these incidental powers a surrogate cannot proceed upon some' novel theory of his own, but must always have reference to established usage and precedent, as was authoritatively said in the case before cited (Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 74 ), where the court refers to the practice of former probate and administrative jurisdictions as explanatory of the incidental powers arising under a general grant of jurisdiction to the surrogates. This is always the rule in similar instances. When the Supreme Court of Yew York was first vested with the common law jurisdictions of the Courts of King’s Bench, Common Pleas and Exchequer, which even now in the final analysis de

It is true that the surrogates’ present jurisdiction is primarily dependent on the statute of this State, but when the statute grants in general terms a known jurisdiction to the surrogate to issue and revoke letters of administration (Code Civ. Pro., § 2472), it means to issue them in accordance with the practice and usage prescribed by the statute or, in its absence, by the fundamental law of the State. To determine what that fundamental law is we must first refer to the precedents, formerly binding in the probate jurisdictions of this State. This was the course obviously in the minds of the court in Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 74 , where I think I find clearly expressed adumbrations of the doctrine which I believe to be the true one.

If the surrogate has no longer the power to issue limited letters of administration in this cause it is because it has been, as I conceive, taken away by mere construction of a very inconclusive statute. This result is, to say the least, unfortunate. The contentious and administrative business of the Surrogates’ Court of this county is in volume greater than that of any other similar court, perhaps, in the world.

Before proceeding to a conclusion let us verify for a moment what has been stated regarding the extent of the former jurisdiction of the courts of probate in this State, at a time when their jurisdictions, practice and procedure were modelled on that of the ecclesiastical courts, for we shall find that a power to grant limited administration was then involved in the jurisdiction to issue letters of plenary administration. One was a mere modification of the other .to meet the necessities of those who resorted to such courts for authority, relief or assistance in their affairs. Jurisdiction is never for the benefit of the court, but always for the benefit of the litigant. At common law, it was once considered uncertain whether a court of probate could grant an administration pendente lite except in cases of intestacy. But the case

For the reasons indicated I should have been of the opinion that the surrogate could have granted a limited administration in this cause until the will of Edwárd Carter was brought to probate. But I am constrained to the contrary by the decision mentioned: “ Sententia quae tutissima videbatur, vicit/’ I am never disposed for one moment to depárt from the orderly administration of justice and to substitute my own conceptions thereof for those of my superiors. I will assume that I cannot grant a limited administration in this proceeding, as stated in Kirwin v. Malone.

But the applicant is entitled to some relief in this proceeding. Therefore, unless the widow takes out-citation on the will filed within twenty days, I shall reluctantly grant the application for letters of general - administration, in accordance with the later practice in this court since the decision in Kirwin v. Malone. But in so doing I shall not ignore the widow’s higher right to so administer if she invoke it. If the widow elect to administer, she will, I think, have thereby

Decreed accordingly.