Bolton v. Schriever

This is an action of ejectment to recover possession of a lot of land on Tenth avenue, between 33d and 34th streets, in the city of 27ew York. The, land belonged at the túne of his death to one Theodore B. Talmadge, who died in January, 1841. Mr. Talmadge is the common source of title,' the plaintiffs claiming as his heirs at law, while the defendants claim, through his will, which in May, 1841, was proved before-the surrogate of the county of 27ew York, and letters granted, to the executor named therein; It is claimed by plaintiffs that Mr. Talmadge died in the county of Columbia, and that at the time of his death he was not an inhabitant of 27ew York county, and the surrogate of that county had no jurisdiction to take proof of the will or to grant letters testamentary thereon, and as there was no other proof of the execution of the will the defendants made out no title to the land and the plaintiffs-were entitled to recover it as heirs at law of Talmadge.

There was a hearing before the 27ew York surrogate and a judicial investigation, and the result was the judgment or decree admitting the will to probate. The infant daughters of the testator appeared on this investigation by guardian

The petition of the executor named in the will to the surrogate of Mew York, alleged that the deceased was at or immediately previous to his death, an inhabitant of the county of Mew York, by means of which the }iroving of the will belonged to such surrogate.

The surrogate, in admitting the will to probate and issuing letters testamentary to the executor, in effect decided the fact of inhabitancy, for it was a fact necessary for the surrogate to decide before admitting the will to probate or granting letters, and his decision of that fact, based upon evidence having a legal tendency to support it, ought, it would seem, on general principles, to stand until reversed or set aside, even though it were erroneous.

Much of the general importance which might otherwise attach to the decision of this question is taken from it by reason of legislation upon the subject. In 1870 an act was passed which applied to judgments of surrogates’ courts in Mew York county, and in 1880 a similar act was passed in regard to those courts in all the other counties of the state. (Chap. 359 of the Laws of 1870; Code Civ. Pro. § 2475.) These acts provided in substance that the objection to the jurisdiction of such judgments should not be taken collaterally.

We are of opinion that in a case like the present the same rule obtains, which has been authoritatively declared as to future cases by the statutes cited. Under these circumstances we do not feel called upon to enter into any detailed and extended discussion of the grounds for our decision. It is

We think that where the individual died an inhabitant of the state by reason of which there was in fact an estate to he administered upon, and the only question is which of the Surrogate’s Courts hi the counties of the state should act, there is in that case jurisdiction in one of these counties over the subject-matter, that is, over the administering upon the estate of a deceased person dying an inhabitant of the state, and which surrogate is to exercise such jurisdiction depends upon the fact as to which county deceased was an inhabitant of. at the time of his death. The decision of such question where evidence is given, and upon a hearing of the parties, ought to be and, we think, is conclusive upon any collateral attack. Under our statute as to proof of wills, although it does not in terms provide that the petition shall state, or that the surrogate shall inquire and decide as to the fact of inhabitancy, yet we think the fair implication arising from a perusal of the whole statute upon the subject, is that the surrogate has power and is bound before admitting the will to probate or issuing letters to institute the inquiry and to decide upon the fact of inhabitancy. (Laws of 1837, chap. 460, §§ 4, 5, etc.)

As the surrogate is directed to inquire as to the names and places of residence of the heirs of the testator, the implication is a necessity that he must first inquire whether there was a testator. Within the meaning of this statute, there could be no testator if there were no deceased person, neither could there be any heirs of one who was then alive. The surrogate is to take proof of these facts where the testator died an inhabitant. (§ 1 of above cited act.) He must, therefore, as

Another statute authorizes the surrogate to issue subpoenas and take testimony in all matters material to any inquiry pending in his court. (2 Rev. S. 221, § 6.) The duty to investigate and decide upon the fact of inhabitancy is necessarily and naturally to he implied from the whole provisions of the statute relating to wills and their probate and such duty is to he performed before the will is admitted or letters issued. If no contest is made and there is no evidence upon the subject of the inhabitancy of the testator one way or the other, except the sworn allegation in the petition, I do not see why the surrogate may not rely upon the fact so stated. Whether, when the fact thus appears in the sworn petition addressed to the surrogate, such fact shall he resworn to by the petitioner or some one else upon an oath administered by the surrogate himself is matter which, as it seems to us, is not of a jurisdictional nature. The surrogate may regard the oath taken to the petition as sufficient prima facia evidence, although the statute does not in terms require the fact of inhabitancy to he stated in the petition. If it he so stated and sworn to and no evidence is offered on the other side and no issue raised as to the truth of the allegation in any manner or form, the decision of the surrogate should be regarded as conclusive, subject only to attack by a direct proceeding to review it. It might happen that where there is evidence pro and con, the decision would appear to be erroneous, and for that reason it ought to he reversed, hut unless a direct attack be made upon it, the judgment should remain. This is upon the principle that the surrogate must decide upon some evidence the fact of inhabitancy before he can go further, and when he does so decide, although erroneously, the decision must stand until reversed.

The nature of a judgment which admits a will to probate is somewhat similar to that of one in ram. The ras which the court takes into its hands for purposes of administration as representative of the state, is the property which was once

To prevent contention and to achieve a peaceful distribution of the estate under the rules of law, and to protect the rights of the creditors of the deceased, all civilized states have created tribunals of a judicial nature, whose function and duty it is to represent and exercise the powers of the state in the course of administration, and whose judgments determine the rights of the respective parties interested in the property as such rights are made to appear. The general jurisdiction over matters of this nature belongs to the state itself by reason of its general sovereignty. The practical exercise of the jurisdiction is vested in the so-called Courts of Probate or Surrogates’ - Courts.

In construing the language of the statute creating such courts, the fact must continually be borne in mind that the state is creating a tribunal or tribunals for the purpose of fulfilling its general obligations to all its inhabitants to protect and .distribute, according to law, that which was once the property of one of their own number. That obligation is as broad as the sovereignty of the state itself. In the organiza

There is in the nature of things a broad distinction between the case of the granting of letters of administration upon the estate of one not in fact dead, and the granting of letters upon the estate of one who was, at the time of his death, an inhabitant of the state, but not of the county where the will was proved, although the surrogate upon some evidence erroneously decided that he was.

We do not intend by this decision to attack the principle or to shake the authority of the first Boderigas ease (63 N. Y. supra), for we simply say it is not necessary to here go so far as that case goes. In the opinions delivered in the two Boderigas cases will be found much of the learning on this subject, and a citation to most of the decided cases then reported and bearing upon the question.

In this record we think it appears that there was evidence enough to call upon the surrogate of Yew York to decide upon the question of the inhabitancy of Mr. Talmadge, and the surrogate, by admitting the will to probate and issuing letters testamentary, did in fact decide that Mr. Talmadge was, at the time of his death, an inhabitant of Yew York county, and this conclusion must, in such an attack as this, be a bar to a reopening of that question. This view of the main issue involved in this case calls for the affirmance of the judgment.

In Bolton v. Jacks (6 Robt. 166) a contrary result was arrived at by the Superior Court of Yew York in a very elaborate and learned opinion. With many of the views therein expressed as to the right to question a judgment rendered without jurisdiction we entirely concur, but for the reasons above given we think they are inapplicable to the particular facts of this case.

Upon this appeal the plaintiffs seek to review the oraer granting an extra allowance of costs to the defendant. The ground of the appeal is that a new trial herein was taken by plaintiffs under the section of the Code (§ 1525) granting such right as, of course, upon payment of costs, and that, included in the costs which plaintiffs paid when availing themselves of the right to a new trial, was the amount of an extra allowance granted by the court after the former trial. The plaintiffs contend that but one extra allowance can be collected in the same action. This precise question has already been determined adversely to the plaintiffs’ view in the case of Wing v. De La Rionda ( 131 N. Y. 422 ).

The whole judgment should be affirmed, with costs.

All concur, except G-ray, J., taking no part.

Judgment affirmed.