Roderigas v. East River Savings Institution

On the 1st day of October, 1857, the intestate, James Devine, deposited with the defendant, a savings bank in the city of Hew York, the sum of $485, and soon thereafter went to the Island of Cuba with his wife, the present plaintiff, to reside, leaving his wife’s mother, Isabella McHeil, residing in the city of Hew York. Neither James Devine nor his wife having returned to Hew York in April, 1869, Mrs. McHeil applied to the surrogate of Hew York for letters of administration upon his estate, upon sufficient formal proof that he had died intestate, leaving assets in the county of Hew York, and that his wife was also dead, and that she was a creditor; and in May, 1869, the surrogate granted letters

In May, 1872, the plaintiff returned from Cuba to New York, and then, for the first time, learned what her mother had done, and she applied to the surrogate for letters of administration upon her husband’s estate upon allegations and proofs that he lived in Cuba until March, 1871, when he died intestate, and the surrogate revoked the letters which had been issued to Mrs. McNeil and granted letters to the plaintiff, who had again married.

The plaintiff then demanded the deposit of the defendant, with the accumulation of interest, and payment being refused she brought this action and recovered. The sole question for our consideration is, whether the payment to the first administratrix is a defence to this action.

It is claimed, on the part of the plaintiff, that the surrogate, in granting letters upon the estate of her husband, who was not then dead, acted wholly without jurisdiction, and that his proceedings in granting such letters were null and void. The question as to the effect of letters granted under such circumstances, so far as I can discover, has never been decided in this State, and is, in this case, for the first time before this court for consideration.

Surrogates’ Courts are courts of limited and special jurisdiction, and yet their jurisdiction to grant administration upon the estates of deceased persons is general and exclusive. No other courts can act and discharge the same functions. Before their proceedings can have any validity or confer any authority, they must have jurisdiction to act, and this is true of all courts. No court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in the particular case, can make a valid record, or confer any rights.

This rule as to the jurisdiction of officers and courts of limited and special jurisdiction has many illustrations in the cases cited. In Staples v. Fairchild, the rule is announced as follows: “ Where certain facts are to be proved before a court or officer of special and limited jurisdiction as a ground for issuing process, and there is a total defect of evidence, the process will be void ; but where the proof has a legal tendency to make out a proper case, in all its parts, for the jurisdiction of the court or officer, although such proof may be slight and inconclusive, the process will be valid until set aside on a direct proceeding for that purpose. In ■ one case the court acts without authority j in the other it only errs in judgment upon a question properly before it for adjudication. In the one case there is a defect of jurisdiction ; in the other there is only error of judgment.” In Porter v. Purdy, the following language is used: “ When, in special proceedings in courts or before officers of limited jurisdiction,

The jurisdiction of Surrogates’ Courts is defined, and their proceedings are regulated in our statutes. It is provided (2 R. S., 74, § 23) that “ the surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant letters of administration of the goods, chattels and credits of persons dying intestate in the following cases: 1. When an intestate, at or immediately previous to his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened. 2. When an intestate, not being an inhabitant of this State, shall die in the county of such surrogate, leaving assets therein. 3. When an intestate, not being an inhabitant of this State, shall die out of the State, leaving assets in the county of such surrogate, and in no other county. 4. When an intestate, not being an inhabitant of this State, shall die out of the State, not leaving assets therein, but assets of such intestate shall thereafter come into the county of such surrogate.” It is further provided (§ 26) that “before any letters of administration shall be granted on the estate

Under these provisions of the statute, the surrogate can no more institute a proceeding than the' judge of any other court can institute a suit. He must wait until some person interested comes before him and, upon proper allegations, invokes the exercise of his jurisdiction; and then he has not the option to exercise it — he must exercise it. If he should refuse to act, he can be compelled to action by mandamus. While the statute gives him 'no jurisdiction to administer upon the estate of a living person, it imposes upon him the duty of inquiry as to the death of any person upon whose estate letters of administration are applied for, and the inquiry is a judicial inquiry. 'In discharging that duty, he may examine the person applying for letters and examine other witnesses, and in making such examination he is discharging his judicial functions and exercising his rightful jurisdiction. He can compel the attendance of witnesses before him by attachment; and false swearing would be perjury under our statutes upon that subject. When proof has been produced to his satisfaction, the other conditions of the statute being complied with, he must issue letters. The inquiry may be a difficult one. ■ In many cases in the time of war, in the cases of absence upon the seas, or in foreign lands, and in the case of long absence unheard from, death cannot be proved with infallible certainty. Witnesses may be untruthful or mistaken, and the surrogate may thus be led into error, yet he must act; the statute makes it his duty to do so. He must decide upon the fact of death as'best he can upon the evidence produced, exercising a judgment not infallible. Does he decide it at his peril? If he decides one

The claim is, that if death has not occurred, although the surrogate may have been satisfied by the clearest proof before him that death had occurred, his proceedings are a nullity for want of any jurisdiction to act. The consequence is that they furnish no protection to any one. The surrogate, who has in good faith ordered the sale of property and the distribution of money, may, in after years, be made liable for the-whole estate. After many years it may be a question whether .the intestate died in one month or in another month, earlier or later; and shall the jurisdiction of the surrogate and the validity of his proceedings and his protection against liability depend upon how this question may be determined by a jury upon disputed evidence ? If the surrogate’s proceedings are to be held null and void in case he errs as to the fact of death, the same result must follow if he errs as to the place of death, and as to the other facts mentioned in section 23, above cited. The fact of inhabitancy is frequently one difficult to be determined. It is one the surrogate must determine before he can issue letters, and its determination frequently depends upon disputed and fallible evidence; and if error as to the fact of death will leave him with no jurisdiction, so will error as to the fact of inhabitancy, and the consequence will be that in such a case his proceedings will give no protection to any one. A construction of the statutes which will lead to such results will make the laws as to the jurisdiction and proceedings of Surrogates’ Courts difficult and hazardous to execute, and should not be tolerated unless the language used will admit of no other construction. I am of opinion, taking into consideration the various provisions of the statutes, that it was the intention of the legislature to confer upon Surrogates’ Courts sole and exclusive jurisdiction over the subject of granting letters of administration; and as part of that jurisdiction to determine the facts, upon sufficient evidence, upon which their action must rest.

As early as 1792 (2 Greenl., 420), in the preamble to an

The statutes furnish a complete system. The surrogate is to take judicial action and determine the facts upon which his jurisdiction rests. If the case be a proper one he must issue letters, and then the letters are conclusive evidence of the authority of the administrator until reversed on appeal or revoked. (2 R. S., 80, § 56.) There is ample power to revoke or vacate letters in case they have been improperly granted ; but in that case the acts of the administrator, done in good faith, are valid. (2 R. S., 80, § 47; Laws of 1837, chap. 460; Flinn v. Chase, 4 Denio, 85 ; Kerr v. Kerr, 41 N. Y., 272 .) The administrator is required to give a bond that he will faithfully execute his trust and obey all orders of the surrogate touching the administration.

Taking all these provisions together it is apparent that it would be rare that a living person would be seriously harmed by administration upon his estate. But it is otherwise with

As my conclusion in this case is based upon the construction of the statutes of this State regulating the jurisdiction .and proceedings of Surrogates’ Courts, decisions from other States made under statutes not the same, can furnish us little aid; but the following authorities tend somewhat to sustain the conclusion I have reached: Bumstead v. Read ( 31 Barb., 661 ); Bolton v. Brewster (32 id., 389); Morrell v. Dennison ( 8 Abb., 401 ); Holcomb v. Phelps ( 16 Conn., 127 ); Roborg v. Hammond (2 Harr. & Gill, 42); Parhan v. Moran (supra).

There is a dictum adverse to my conclusion in Allen v. Dundas (3 T. R., 125), and also in Griffith v. Frasier ( 8 Cranch, 9 ). In Jochumsen v. Suffolk Savings Bank ( 3 Allen, 87 ), the precise question involved in this case, of the payment by the savings bank to an administrator of a depositor appointed in his lifetime, was decided under the Massachusetts ■statutes adversely to the views I have expressed. It was held that the depositor could recover notwithstanding the prior payment by the bank to the administrator. In Bolton v. Jacks (6 Robertson’s Sup. Ct. R., 166), there is a learned ■discussion of the question of the jurisdiction of courts, and it was there held that if a surrogate admitted to probate a will of a testator not at the time of his death an inhabitant of his ■county, he acted without jurisdiction, and that his proceeding was void and could be attacked collaterally. I believe the ■decision to be unsound in this respect.

A further criticism of cases to which our attention has been •called would not be useful. The question for our decision is

The judgment must be reversed and new trial granted, costs to abide event.

The question to be determined in this case is-, whether payment to an administrator, duly appointed by the surrogate as the law directs, of a person supposed to be dead, and who it subsequently appears was living at the time when letters were granted, is valid and conclusive against an administrator actually appointed after the decease of the intestate.

The right to letters of administration upon the estate of a deceased person is regulated by statute, and it is provided that “ before any letters of administration shall be granted on the estate of any person who shall have died intestate, the fact of such person’s dying intestate shall be proved to the satisfaction of the surrogate, who shall examine the persons applying for such letters on oath, touching the time, place and manner of the death, and whether or not the party dying left any will, and he may also, in like manner, examine any other person, and may compel such person to attend as a witness for that purpose.” (2 R. S., 74, § 26.) The first part of the section cited makes provision for proof of death and intestacy in all cases to the satisfaction of the surrogate, and the latter portion for an examination as to the death, the circumstances connected therewith, and as to the fact whether the party dying left a will. The foundation upon which the proceedings rest are death and intestacy, and both of these must be satisfactorily established. Sufficient evidence must be furnished to afford a reasonable presumption and to satisfy the officer of these essential facts. When this is done according to the rules applicable to such cases, the surrogate is legally bound to grant the letters applied for. He is obligated to perform this duty, which is judicial in its character, and carries with

The statute also provides that letters “ granted by any officer having jurisdiction, shall be conclusive evidence of the authority of the persons to whom the same - may be granted, until the same shall be reversed on appeal or revoked, as in this chapter provided.” (2 R. S., 80, § 56.) A subsequent provision declares that all sales made in good faith and all lawful acts done by administrators before notice of a will, or by executors or admininistrators who may be removed or superseded, etc., shall remain valid, and shall not be impeached by any subsequent revocation or superseding of the authority, etc. (2 R. S., 79, § 47.) The effect of these last provisions must depend upon the construction to be given to the section first cited as to the jurisdiction thereby acquired. They were evidently incorporated into the statute as part of an entire system, and may properly be considered together. The power and the duty of 'the surrogate to issue the letters upon satisfactory proof being furnished, is very clear, and the point to be determined is, whether he had no jurisdiction because it subsequently turned out that the alleged intestate was living. It is, no doubt, true that the surrogate has no jurisdiction to grant letters upon the estate of a living person ; but a mode has been provided by law to test the fact whether a person is deceased, and as the legislature has enacted how this shall be done, and as the adjudication of a competent tribunal must stand when jurisdiction is acquired until reversed or superseded, as the law

The legislature has conferred upon the surrogate of each county in the State sole and exclusive jurisdiction within the county to grant letters of administration of the personal estate of persons dying intestate. It has given authority and provided what proof shall be given upon an application for letters, and that the surrogate shall be satisfied before he grants the same. The power of the legislature to enact laws in reference to the administration of the estates of deceased persons cannot be doubted. And as incident to that power, it is entirely competent to authorize the tribunal constituted for such a purpose to pass upon the question of fact and determine, what it is often difficult to ascertain, whether the person whose estate is the subject of the application is living or dead. It must be determined by some tribunal before letters can be granted, and no satisfactory reason is given why the legislature should not declare by statutory enactment the mode in which it shall be done and the effect of such a determination. Cases arise where death takes place under circumstances where no living witness can be produced to testify to the fact. Parties disappear suddenly, with no trace of their whereabouts. They are sometimes lost, or supposed to be lost, at sea, or are so long absent from their homes and from communication with relatives and friends as to raise a presumption that death has taken

The power of the legislature to pass laws providing for the vesting of estates in certain cases, upon the presumption of death, has been exercised for a long period of time, and never questioned. (1 R. S., 749, § 6.) ISTor has it ever been doubted that a second marriage may be made valid by statute after an absence for a sufficient period of time. (2 id., 139, § 6 ; Cropsey v. McKinney, 30 Barb., 47 .) The statutes

The letters were ample authority to receive the money and justify the payment; and had the defendant refused to pay, no defence could successfully be interposed to a suit brought. The decision of the surrogate, with sufficient evidence to establish death, was a judicial determination, and is a protection to all persons acting in good faith by virtue of the letters issued by him. In Porter v. Purdy ( 29 N. Y., 106 ), it was held, that the proceedings in courts, or before officers of limited jurisdiction, in regard to a particular fact, and which are in the nature of adjudications, if erroneous, must be corrected by a direct proceeding for that purpose, and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be. This doctrine was applied to freeholders appointed to assess the expense of a sewer, and may be especially invoked in a case where a competent tribunal lias acted judicially in reference to a subject by virtue of authority expressly conferred by law. (See, also, 2 Harr. & Gill, 42; Noell v. Wells, 1 Lev., 235.) In Allan v. Dundas (3 T. R., 125), it was held that payment of money to an executor

In Jochumsen v. Suffolk Savings Bank ( 3 Allen, 87 ), the question now raised was distinctly presented upon facts almost precisely similar to the case now considered, and it was held that payment to the administrator of the living man was no defence to the suit brought by him. There was no statute in the State of Massachusetts making special provision in regard to the subject as there is here, and therefore it has no application. In reference to this case as well as other cases which uphold the same doctrine, it may also be remarked that they were disposed of without regard to any statutory regulation which conferred upon a tribunal organized for that purpose, within the jurisdiction where they were decided, authority to investigate, pass upon and decide the question, whether a person whose estate was sought to be administered upon was deceased. Such was the object and purpose of the statutes cited, and independent of any rule which may have otherwise prevailed where no tribunal was

The judgment rendered must be reversed and a new trial granted, with costs to abide the event.

For reversal, Rapallo, Andrews, Millee and Eabl, JJ.

For affirmance, Ohuboh, Oh. J., Allen and Folgeb, JJ.

Judgment reversed.