In re Wilcox's Estate — 21 N.Y.S. 780

Majority

p. 780

In re WILCOX’S ESTATE.

(Surrogate’s Court, Orleans County,

September 1, 1892.)

Headnote

1. Surrogates’ Decrees—Satisfaction. Code Civil Proc. § 2553, provides that, where a decree of the surrogate’s court directs the payment of money, the surrogate or qlerk must furnish transcripts to applicants therefor, and that each county clerk to whom such a transcript is presented must file the same, and docket the decree as prescribed bylaw for docketing a judgment of the supreme court, and that,the docketing of such decree has the same force and effect, the lien thereof maybe discharged, and the decree may be satisfied, as if it was such a judgment. Held, that this section, which contains the only provision for satisfying surrogates’ decrees for the payment of money, applies to all such decrees, whether docketed in 'the county clerk’s office or not, and they must be satisfied as if they were judgments.

2. Same—Acknowledgment Taken in Another State—Certificate. Since Code Civil Proc. § 2553, requires a decree of the surrogate’s court directing the payment of money to be satisfied as if it were a judgment, and section 1260 requires the satisfaction of a judgment, when not acknowledged by the clerk or his deputy, to be acknowledged and certified in like manner as a deed, and Laws 1848; c. 195, §§ 1, 2, as amended by Laws 1867, c. 557, provide that the acknowledgment of a deed, when made by a person residing in .another state, maybe made before any officer of such state “authorized by the laws thereof to take the proof and acknowledgment of deeds, ” and that the same may be recorded when the proper officer attaches his certificate, “ specifying that such officer was, at the time of taking such proof or acknowledgment, duly authorized to take the same,” a certificate of the authority of ano.tary public in another state taking the acknowledgment of a satisfaction of a decree of the surrogate’s court, which merely states that the officer “is duly authorized to take the same, ” without stating that he is authorized to take the acknowledgment of deeds, is insufficient.

Proceedings for the judicial settlement of the estate of Elnathan Wilcox, deceased. The executor presented to the court, and moved for leave to file, certificates of satisfaction of a decree directing the payment of money. Denied.

Sawyer & Fitch, for the motion.

Whedon & Ryan, opposed.

In this matter certificates of satisfaction of the decree which directs the payment of money are filed by several parties. These certificates are executed out of the state, and acknowledged before a notary public, and have attached thereto a certificate -of .the county clerk, which certifies that the officer taking the acknowledgment is a notary public, duly commissioned, etc., and “is duly authorized to take the same,” but does not certify that the officer was authorized by the laws of the state where taken to take the acknowledgment of deeds. The question has arisen so frequently in this court as to the proper manner of satisfying a decree that I deem it important to review the provisions of the Code -and the practice in the matter of the satisfaction, of decrees of this- nature in the surrogate’s court- The decree must .be-satisfied as

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if. it was a judgment of record. Code Civil Proc. § 2553.^[1] McClell. Sur. Ct. Pr. (3d Ed. 1888,) p. 518, givésLaws 1867, c. 782, § 9, as the authority for the satisfaction of a decree; but this act was repealed by the general repealing act of 1880. That act provided that a decree might be satisfied on filing a release “acknowledged or proved as now re■quired as to a conveyance of real estate.” It has been suggested that section 2553 applies only to decrees that have been docketed in the county clerk’s office, and become practically a judgment of the supreme court. It will be found, however, that this section contains the only provision in regard to such satisfactions, and, in their notes, the codifiers •say: “A clause in the last sentence of this section supersedes Laws 1867, c. 782, § 9.” From this it appears that the intention was to make the clause applicable to all such decrees, whether docketed or not. Section 1260 of the. Code provides for the satisfaction of a judgment, and the last part of the section provides that, when not acknowledged by the clerk or his deputy, the satisfaction “must be acknowledged or proved :and certified in like manner as a deed to be recorded in the county where it is filed.” The provisions for the taking of acknowledgments •of such instruments outside of the state are found in Laws 1848 c. 195, §§ 1, 2, as amended by Laws 1867, c. 557. See 3 Birdseye’s Rev. St. p. 2550, § 8. This act provides that “ the proof or acknowledgment of any deed or other written instrument required to be proved or aeknowl■edged in order to entitle the same to be recorded or read in evidence, when made by any person residing out of this state and within any other ■state or territory of the United States, may be made before any officer of ■such state or territory authorized by the laws thereof to take the ■proof and acknowledgment of deeds.” The following section provides that the same may be recorded or read in evidence when the proper officer attaches his certificate “specifying that such' officer was, at the time of taking such proof or acknowledgment, duly authorized to take the same.” The certificates before the court are in a form frequently •used, and certify that the officer before whom the annexed instrument was acknowledged was a notary public, etc., and “was duly authorized to take the same.” If the instrument was a deed, this would be, in effect, certifying that he was, by the laws pf that state, authorized to take the acknowledgment of deeds, but it does not follow that, because by the law •of the foreign state he was authorized to take the acknowledgment of the satisfaction of a decree in surrogate’s court, he was authorized to

1 Code Civil Proc. § 2553, provides: “Where a decree directs the payment of a sum of money into court, or to one or more persons therein designated, the surrogate, or the clerk of the surrogate’s court, must, upon payment of his fees, furnish to any person applying therefor one or more transcripts, duly attested, stating all the particulars with respect to the decree which are required by law to be entered in the clerk’s docket book, where a judgment for a sum of money is rendered in the supreme court, so far as the provisions of law directing such entries are applicable to such a decree. Each county clerk to whom such a transcript is presented must, upon payment of his fees, immediately file it, and docket the decree in the appropriate docket book, kept in his office as prescribed by law, for docketing a judgment of the supreme court. The docketing of such a decree has the same force and effect, the lien thereof may be suspended or discharged, and the decree may be assigned or satisfied, as if it was such a judgment. ”

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take an acknowledgment of deeds; nor will this be presumed. Bowen v. Stilwell, 9 Civil Proc. R. 281.

It has been suggested that these certificates follow the words of the statute, and therefore are sufficient, but it will be observed that the statute does not say, “ certifying that he was authorized to take the same,” but “specifying that he was authorized to take the same.” It is not to be presumed that the county clerk of a county outside of the state is to certify that, by the laws of the state of New York, an officer of his state was authorized to take acknowledgments, but he may specify enough to warrant the court here in determining that he had the authority. This authority must be derived from the laws of this state. Ross v. Wigg, 34 Hun, 192 . The fact that he was authorized by the laws of the state where he resides to take acknowledgments of deeds would not authorize him to take the acknowledgment of these instruments. His entire authority, so far as his acts, in this respect are concerned, is derived from our statute. The statute of this state might have provided that any attorney residing in that state might take the acknowledgment. The specifying required by the clerk is that the officer taking is one that is authorized by the laws of that state to take acknowledgment of deeds, as in the other case it would specify that the person taking was an attorney residing in the state; while, on the other hand, the certifying that the officer was authorized by the laws h> take the acknowledgment of a satisfaction of a judgment does not specify him as an officer authorized by the laws of the state to take the acknowledgment. For this reason—that he is not specified, designated, or pointed out asoné having the required authority—the satisfactions cannot be filed until they are returned, and the clerk specifies that the officer taking the acknowledgment was authorized by the laws of that state to take the proof and acknowledgment of deeds.