O'Connor v. Higgins — 16 N.Y. St. Rep. 130

Majority

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Thomas O’Connor, Ex’r et al., Resp’ts, v. John P. Higgins, App’lt.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

1. Surrogate's court—Jurisdiction of—Determination cannot be attacked COLLATERALLY.

A surrogate has jurisdiction to grant administration upon the estates of deceased persons, and when a person is actually dead, that officer possesses power over the general subject-matter, and though he act erroneously, his action cannot he impeached collaterally.

2. Same—Jurisdiction of—Jurisdiction is conferred by presence of ASSETS OF NON-RESIDENT DECEDENT WITHIN SURROGATE’S COUNTY.

Where a person not an inhabitant of this state dies, leaving assets within this state, the surrogate of the county within which they are at the time of his death has jurisdiction over them.

3. Same—Proceedings to sell real estate of decedent—What will NOT INVALIDATE.

The statute provides that an order to show cause why an administrator

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should not be authorized to sell real estate of an intestate shall be returnable not less than six nor more than ten weeks from the time of making the order. Held, that proceedings taken pursuant to an order empowering an administrator to sell were not rendered void by the order to show cause being made returnable one day later than ten weeks from the time of making it, as it did not prejudice the interests of any parties.

Appeal from special term judgment directing the specific performance of a contract for the purchase of real estate.

Francis B. Chedsey, for app’lt; Charles E. Miller, for resp’ts.

The property, which is the subject-matter of this action, was formerly owned by Isaac F. Craft, who died in the state of Indiana in the year 1845. On March 20, 1850, letters of administration upon the estate of the said Isaac F. Craft were granted to Richard M. Pell by the county judge of Richmond county, in this state, acting as surrogate. Subsequently, the same officer made an order authorizing such administrator to sell property belonging to his intestate, situated in the city of New York, and embracing the premises to which this litigation relates. The plaintiffs derive their title through the sale which the administrator made pursuant to this order. The defendant objects to the title. First, on the ground that the appointment of Pell as administrator was void for want of jurisdiction to make it; and, secondly, on the further ground that the order directing the sale by the ádministrator was void, because the order to show cause, upon which it was based, was made returnable one day later than the time prescribed by statute.

Neither of these objections is well taken. The letters of administration recite that “Isaac F. Craft, lately departed this life intestate, being, at or immediately previous to his death, an inhabitant of Lawrenceburgh, in the state of Indiana, leaving assets unádministered in the county of Richmond.” These letters appear to have been granted upon an affidavit which stated that Craft died possessed of certain personal property in the state of New York, the value of which did not exceed the sum of about $1,000. Taking this affidavit in connection with the recital in the letters themselves, it may fairly be inferred that this personal property was actually situated in Richmond county, in which case the surrogate’s court clearly had the jurisdiction which it assumed to exercise.

From all the proof presented in the present case, we are satisfied that there was enough before the surrogate of Richmond county to call upon him to determine whether or not the property of the deceased intestate was so situated as to authorize him to issue letters of administration. This gave him jurisdiction, and, although he may have erred in

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the conclusion which he reached, that error is not available in the present action. A surrogate is vested with jurisdiction to grant administration upon the estates of deceased persons; and, where a person is actually dead, that officer possesses power over the general subject-matter. Roderigas v. East River Savings Institution, 76 N. Y., 316 , 321. He has a right to act, says Chief Judge Church, in the case cited; and, although he acts erroneously, his action cannot be impeached collaterally. “ He may commit an error as to inhabitancy, which would be sufficient to reverse his decision, but not sufficient to render it void from the beginning, for the reason that he had power to act upon the subject.”

The order to show cause why the administrator should not be authorized to sell, was made on November 18, 1850. The statute prescribed that the return day should be not less than six weeks, and not more than ten weeks from the time of making such order. The order was, in fact, made returnable on January 28, 1851, being seventy-one days from the date on which it was granted. The appellant contends that this error in the computation of the time, made the subsequent order of sale absolutely void; and in support of this proposition he cites the case of Stilwell v. Swarthout ( 81 N. Y., 109 ). In that case, a similar order was returnable nearly a week less than the time prescribed by statute, and the error was held to be fatal to the sale. The defect was declared to be not merely an irregularity, but one of a jurisdictional character; and the court applied the familiar rule that, in a proceeding to divest the title to real estate, the statute must be strictly pursued, and any substantial departure from its requirements, would render the proceeding void. But we think there is a radical difference between shortening the time by an entire week, and lengthening it by a single day. In the first case, the parties entitled to notice have been deprived of the opportunity which the further lapse of time would have given them, to learn of the pendency of the proceeding by which their rights might be affected. In the second case, it is impossible to see how they can have been harmed. In our opinion, therefore, the mistake in question here was not such a substantial departure from the requirements of the statute as to compel the court to declare the proceeding void on that account.

But, independently of the questions which have thus far been considered, the plaintiffs proved upon the trial a good title to the premises in suit, by adverse possession for more than thirty years. We have carefully examined the evidence on this branch of the case, and think it was clear enough to justify a direction to a jury to find in favor of the plaintiffs on this ground alone. Under these circumstances, the defendant is not at liberty to refuse to take title. Shriver v. Shriver, 86 N. Y., 575 ; Ottinger v. Strasburger, 33 Hun, 466 .

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The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Macomber, J., concur.