Behrle v. Sherman — 23 N.Y. Super. Ct. 292

Majority

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Frederick M. Behrle, Plaintiff, v. Austin Sherman et al., Defendants.

Headnote

1. In an action upon an administration bond, to recover upon the administrator’s disobedience of an order of the Surrogate, requiring payment of a debt, &c., of the intestate, the plaintiff must show that an application was made by the creditor, and that a citation was issued thereupon, and either the fact of the service of such citation, or the proof of its service which was presented before the Surrogate.

2. If the Surrogate’s jurisdiction of the person be thus shown, his decree must . be treated, in such a collateral action, as valid, though no evidence be given that he, in fact, received proof of the claim of the creditor applying, and of the condition and applicability of the assets.

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3. Where the complaint in such an action did not state that any application was made, and simply averred that “the administratrix was.duly cited," &c., to show cause on the 8th of March, &c., setting forth the purport of the citation; and that “on or about that day," “upon reading and filing proof of the due service of said citation upon said administratrix personally,” &c., and on due proof of the claim, &c., it was adjudged, &c.; and the

• answer denied that the administratrix was duly cited, and that the Surrogate duly or pursuant to the statute adjudged, &e., and there was no evidence, except the recitals in the decree, that proof of due service had been read and filed; — Held that jurisdiction was not admitted nor shown.

4. To sustain such an action it must also appear that the execution issued on the docketed certificate of the decree conformed, in substance, with the requirements of the statute.

(Before Bosworth, Ch. T., and Moncrief and Robertson, T. J.)

Heard, February 12, 1863;

decided, February 28, 1863.

Oh the trial of this cause, which was had on the 16th of October, 1862, before Chief Justice Bosworth and a Jury, the Court directed a verdict for the plaintiff, and that the questions of law, arising in the case, be heard in the first instance at General Term, and that the entry of judgment be suspended in the meantime.

The defendants in the action were Adeline C. Gunter, who was the administratrix of one Harmon H. Gunter, and Austin Sherman and John S. Savery, who were the sureties in the administration bond given by her on her appointment in Queens County. The action was brought upon the bond, after an assignment thereof by the Surrogate of Queens County, to recover the amount of certain payments which the Surrogate had ordered the administratrix to make to creditors of the intestate, but which she had failed to make. The complaint in the action, after alleging the making of the bond, &c., averred, “ that after-wards, to wit: after six months had elapsed from the time when such letters of administration were granted, according to the statute in such case made and provided, the said administratrix was duly cited by the said Surrogate to show cause'at the Surrogate’s office, or Court, in the village of Jamaica, in said county, on the 8th day of March, 1858, at eleven o’clock, a. m., why the said Surrogate should not decree payment agaiiist her, the said

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administratrix, of the debt or claim of Mary Feely, Margaret Mahoney, and Sarah McLaughlin, for services rendered bythem respectively, at the request of said Harmon H. Gunter, deceased, during his lifetime, against the said Harmon H. Gunter, deceased. That on or about the day and year last aforesaid, upon reading and filing proof of the due service of the said citation upon said administratrix, personally, no one appearing to oppose, and upon due proof of the rendition of the services to said Harmon H. Gunter, by the said Feely, Mahoney, and McLaughlin, respectively, of the value thereof, and of their respective claims against.the estate of said Gunter, deceased, and their respective claims against said administratrix; it was ordered, adjudged, and decreed, at the Surrogate’s Oourt, held at the place aforesaid, that the said administratrix pay to the said Mary Feely the sum of $111.20; to the said Margaret Mahoney the sum of $89.42; and to the said Sarah McLaughlin the sum of $82, pursuant to the statute in such case made and provided.”

It further averred that this decree was duly docketed, and executions thereon issued and returned unsatisfied, and that the administratrix neglected to pay as required, and that the bond had been assigned to the plaintiff and the said Feely and McLaughlin, for the purpose of being prosecuted, and, further, that before the commencement of this action the demands and the interest in the bond of the creditors named had been assigned to the plaintiff.

The defendant, Sherman, answered, denying various allegations in the complaint, and, among others, denying “that the administratrix was duly cited by the said Surrogate as or for the purpose in the complaint alleged.” He denied also “that the alleged claimants or either of them, had rendered alleged services, or had any claim against the decedent.”

And he denied “that at said Surrogate’s Oourt, at the time in the complaint alleged, or at any time, it was duly or pursuant to the statute in such case made and provided, ordered, adjudged, or decreed, that the said administratrix

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pay to the persons in the complaint alleged or either of them the said three several sums in the complaint alleged, or either of them.”

Upon the trial the plaintiff’s counsel offered in evidence a certified copy of a decree made by the Surrogate, and bearing date the 14th day of April, 1858, requiring the administratrix to pay specified sums to Feely, Mahoney and McLaughlin. The recitals of this order were as follows : “A citation having been duly issued in this matter, requiring Adeline 0. Gunter, administratrix, &c., as aforesaid, to show cause, at the Surrogate’s office, in the village of Jamaica, in the County of Queens, on the eighth day of March, 1858, at eleven o’clock in the forenoon of that day, why the Surrogate of said county should not decree payment against her, the* said administratrix as aforesaid, of the debts or claims of Mary Feely, Margaret Mahony and Sarah McLaughlin, for services rendered by them respectively at the instance and request of the said Harmon H. Gunter, deceased, during his lifetime, against the said Harmon H. Gunter, deceased.”

“ How, on reading and filing proof of the due service of the said citation upon the said Adeline 0. Gunter, administratrix as aforesaid, personally, no one appearing to oppose: It is ordered,” &c.

This order was admitted in evidence, against an objection by the defendant’s counsel, of want of jurisdiction in the Surrogate over the person of the administratrix, or the subject matter; and the defendants’ counsel excepted.

The plaintiff’s counsel also offered in evidence an order dated the 14th of August, 1858, assigning the bond for prosecution, and also the bond and the assignments of the cause of action under which the plaintiff claimed.

The defendant, among other things, objected that the answer denied the issuing of executions, which was necessary to give jurisdiction to the Surrogate to make the order of the 14th of August, 1858, assigning the bond for prosecution, and that there was no proof that such or any executions had been issued.

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. The Court sustained the objection, and thereupon Felix Hart, the attorney for the plaintiff, was called on the part of the plaintiff as a witness, and testified: “I was the attorney for Mary Feely, Margaret Mahoney, and Sarah McLaughlin; I attended for those applicants before the Surrogate of Queens County; I issued executions on the decree of the Surrogate; I delivered them to the under Sheriff of Sheriff Willett, in the Sheriff’s office, on the 23d day of April, 1858; I subsequently saw those executions on file; Í was present when they were returned by the Sheriff unsatisfied; the Sheriff’s indorsement was on them to the effect that no goods, or chattels or real estate were to be found; I recognized the handwritingof the under Sheriff. * * * I have looked over the files in the County Clerk’s office for these executions diligently with Mr. Kipp, [a clerk in "the County Clerk’suffice;] * * they were not found. * *

Q. Did you issue them for the sums named in the order of the Surrogate ?

A. I did, sir, for the exact amounts, and for the amounts mentioned in the complaint. * * * I told the title of the case to Mr. Kipp, ‘ In the matter of the claim of Feely, Mahoney and McLaughlin against Adeline Gunter;’ we searched under that title.

Q. State the contents of those executions as clearly as you can.

A. I used the ordinary printed blank executions directed to the Sheriff of this county, to collect in the matter of the claims I have just stated; I put the title I have mentioned in each of the collections, to collect the sums of money mentioned in the complaint, * * * . directing him to

return these executions to the office of the Clerk of the Supreme Court of the City and County of Hew York; I signed them as attorney, and tested them in the name of T. W. Gierke, one of the Justices of the Supreme Court.

Q. In what time were they ordered to be returned?

A. Within sixty days after the receipt of them by him, they were in due form; I think they were returned within two weeks.

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The defendant’s counsel objected to the sufficiency of such proof to support the plaintiff’s allegation as to the executions. The objection was overruled by the Court, and the defendant’s counsel excepted.

The plaintiff’s counsel also produced and put in evidence a certificate of the Surrogate, dated the 14th of April, 1858, and certifying that on the 8th day of March it was ordered in his Court that the administratrix pay the sums specified, and that the decree directing such payments had been duly entered. The defendant’s counsel objected that such executions being issued and tested as on a judgment of the Supreme Court, and returned in less than sixty days, were not duly issued or duly returned, pursuant to the statute, which requires that such executions shall be issued on such certificate, in the same manner as though the same was a judgment recovered in the Court of Common Pleas. This objection was overruled by the Court, and the defendant’s counsel excepted.

The defendant’s counsel then offered, among other things, evidence that the intestate left no assets, and that there Avere judgments against him outstanding for considerable sums, and. that no inventory had been filed at the time of the citation, which evidence was excluded upon the defendant’s objection that it was not competent to impeach the propriety of the Surrogate’s decree.

The defendant then took various objections to allowing the plaintiff to recover, of which all that are material fully appear in the points below.

J. Cadwalader, for defendants, appellants.

I. The statute alloAving the Surrogate to decree the payment of such debts, applies only to established debts. The Surrogate must be satisfied that the debt claimed is a debt, and is due, and that there are assets to pay the same. A failure of the administratrix to appear on a citation, is not enough. (Butler v. Hempstead, 18 Wend., 669 ; Fitzpatrick v. Brady, 6 Hill, 581 ; Magee v. Vedder, 6 Barb. S.

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C., 356 , 357; Disosway v. Bank of Washington, 24 Barb. S. C., 61 ; Wilson v. Baptist, &c., Society, 10 Barb., 319 .)

II. The administratrix not having filed an inventory at the time of being cited, had no power over the estate, and the Surrogate no power to make the order. The remedy was to cite her to file an inventory, and on default or refusal to revoke her letters and prosecute her bond. (Jeroms v. Jeroms, 18 Barb. S. C., 24 ; 3 R. S., 172; §§ 19, 20, 21, 22, 23.)

III. It must be shown affirmatively that a Court of statutory and limited jurisdiction, had jurisdiction of the subject matter and the person, and its proceedings must be warranted by and conform to the statute. (Dakin v. Hudson, 6 Cow., 221 ; Jackson v. Shepard, 7 Cow., 89 ; Bloom v. Burdick, 1 Hill, 130 ; Cornell v. Barnes, 7 Hill, 37 , note; People v. Barnes, 12 Wend., 492 ; Rea v. McEachron, 13 Wend., 465 , Turner v. Roby, 3 Comst., 193; Sibley v. Waffle, 16 N. Y. R., 180; Corwin v. Merritt, 3 Barb. S. C., 341 .)

IY. Ho jurisdiction of the subject matter appears; for no application is shown to have been made by a creditor, legatee, or person entitled to a distributive share. (3 R. S., 204, § 18; Ford v. Walsworth, 15 Wend., 449 ; Sibley v. Waffle, 16 N. Y. R., 180; Corwin v. Merritt, 3 Barb. S. C., 341 ; People v. Corlies, 1 Sandf., 228 .)

Y. Ho jurisdiction over the person is shown.

1. The answer does deny the allegation in the complaint as to the service of the citation.

2. The service of the citation was a jurisdictional fact to be proved affirmatively. (Bigelow v. Stearns, 19 Johns., 39 .)

YI. The statement by a recital in the decree that jurisdiction was obtained, will neither give it nor prove it. (Ford v. Walsworth, 15 Wend., 449 ; Williams v. Peyton, 4 Wheat., 77 ; Sibley v. Waffle, 16 N. Y. R., 180; Jackson v. Shepard, 7 Cow., 89 .)

YII. The Surrogate had no power to make the order of August 14, assigning the bond, as the proceedings subsequent to the decree and prior to the assignment were

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entirely irregular. (3 R. S., 366, §§ 17, 18, 19; People v. Barnes, 12 Wend., 492 ; People v. Corlies, 1 Sandf. S. C., 227; Rea v. McEachron, 13 Wend., 465 ; Jackson v. Shepard, 7 Cow., 89 ; Sibley v. Waffle, 16 N. Y. R., 180; Davison v. Gill, 1 East, 64; Atkins v. Kinnan, 20 Wend., 241 ; Jackson v. Esty, 7 Wend., 148 ; Baggott v. Boulger, 2 Duer, 160 .)

1. The certificate did not state the names of the parties against and in favor of whom the decree was made. It did not state the trade, profession, or occupation of the parties and their places of residence; nor the amount of debt and costs directed to be paid. (3 R. S., 366; Atkins v. Kinnan, 20 Wend., 241 ; Davison v. Gill, 1 East, 64; Bigelow v. Stearns, 19 Johns., 38 ; and cases last cited.)

2. Execution should issue as on a judgment of the Court of Common Pleas—not of the Supreme Court. (§ 64 of ch. 460 of Laws of 1837 is amended by § 2, ch. 104, Laws 1844, to read Common Pleas instead of Supreme Court; the 3d ed. R. S., vol. 2, p. 320, is correct on this point; the 4th and 5th editions, are both incorrect; 2 R. S., 4th ed., 421; 3 R. S., 5th ed., 366; Dayton on Surrog., 2d ed., 1855, p. 29, § 64, and p. 598; Matter of Latson, 1 Duer 698 .)

3. The execution issued was improper in form. The statute goes to the manner of issuing, and not to the form of the process.

It should have recited the decree, the certificate and docket, and is not to be issued as on a judgment. (Davies v. Skidmore, 5 Hill, 504 ; 3 R. S., 366.)

4. There was no proof that the administratrix resided in the City and County of Hew York, when the executions were issued.

VIII. There was no breach of the condition of the bond of the administratrix.

IX. The decree of March 8th was erroneous and void, in that it directed the payment of debts of a lower class, the validity of which had not been established, when there were judgments entitled to a preference. (3 R. S., 174.)

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The Judge erred in refusing to admit the evidence of judgments.

X. The bond should have been prosecuted by the persons in whose favor the decree was made. They could not assign the interest obtained under the Surrogate’s order.

XI. The measure of the liability of the defendant, a-surety on the bond, is the damage to the estate by the acts of the administratrix. (3 R. S., 174, § 35; Id., 661, § 7.)

The Judge erred in rejecting the evidence offered, ¿s to the filing and contents of the inventory.

XII. The complaint did not state facts constituting a cause of action.

1. Xo sufficient breach of the condition of the bond is assigned. (3 R. S., 661; Reed v. Drake, 7 Wend., 345 ; Nelson v. Bostwick, 5 Hill, 38 ; Barnard v. Darling, 11 Wend., 28 .)

2. The order was against the administratrix personally, and there could be no breach of the condition of the bond.

The word “ administratrix,” was only a deseriptio persona. (White v. Low, 7 Barb., 204 ; Merritt v. Seaman, 2 Seld., 168; Sheldon v. Hoy, 11 How. Pr., 14 .)

Felix Sari, for plaintiff, respondent.

I. The decree was duly docketed, and executions were issued upon it in legal form and manner. (3 R. S., 5th ed., 204, § 18; Id., 366, §§ 17, 18.)

II. - If the execution was irregular in form or otherwise, it should have been set aside on motion. If such motion was made, the Court would allow an amendment. (Code, § 173, 176.)

. III. The act of-1844, directing executions in cases like this. to issue as if on judgments in Courts of Common Pleas, has now no existence, for Courts of Common Pleas were superseded by the County Courts. (Const., art. 6, § 14; See '§'■§> 289 and 290, as to the form of Executions.)

IV. The form of the executions is sufficient under $$ 289 and 290 of the Code, and the irregularity (if any) might be

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regarded as surplusage. (Butterfield v. Howe, 19 Wend., 86 ; Jackson v. Sternbergh, 1 Johns. Cas., 153 .)

The complaint does not allege, nor was it proved that Feely, Mahoney or McLaughlin made “ application ” as a creditor of Harmon H. Gunter, for payment of the debts alleged to be due to them. (3 R. S., 5th ed., 204, § 18, sub. 1.)

It is only on such an application being made that the Surrogate can act under that section.

The complaint alleges that the “ administratrix was duly cited # * to show cause at the Surrogate’s office,” &c. This is denied by the answer, and no evidence of the fact was offered.

The complaint also alleges that, “ upon reading and filing proof of the due service of the said citation upon said administratrix personally, no one appearing to oppose, and upon due proof of the rendition of the services,” and “ of the value .thereof,” it was ordered and adjudged, &c, “ pursuant to the statute in such case made and provided.”

The answer denies that either Feely, 'Mahoney or McLaughlin had rendered the alleged services or had any claim or debt, and also denies that the Surrogate, duly or pursuant to the statute, adjudged, &c. It does not otherwise deny the allegations of reading and filing of proof of due personal service of the citation, or due proof of the rendering of the services.

The complaint does not state what the “ proof” of service of the citation was, of what it consisted, how or by whom made, so as to enable the Court to know the nature of it, or what it legally tended to establish.

If it can be said that the Surrogate obtained jurisdiction of the administratrix, and of the subject matter, by reason of anything appearing in the case, it is because the answer does not deny the allegation, “ upon reading and filing proof,” &c.

The complaint does not state when and where the proof was read or filed. The complaint states that the citation

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required the administratrix to show cause “ on the 8 th of March, 1858, at 11 o’clock, A. M. and “ that, on or about the day and'year aforesaid, upon reading and filing proof of the due service of the citation,” &c.

The answer, therefore, cannot be said to admit that this “ proof,” whatever it was, was read and filed on the 8th of March, 1858, because that is not alleged. That it was read and filed on the 9th, is as consistent with the allegation in the complaint as that it was filed on the 9th.

I think, therefore, that the admission is not of the truth of an allegation sufficiently full and definite to enable the Court to see that the Surrogate acquired jurisdiction, assuming it to be true, in the natural and fair meaning of the words of which it consists.

The plaintiff should show, that on the application of these alleged creditors, a citation was issued, and Avhat it was, and either the fact of the service, or the proof of its sendee which was presented to the Surrogate.

If the proof presented to him was legal in its character, •and established a service which gave him jurisdiction of the administratrix, then I think that his decree must be treated, in this action, as valid, though no evidence be given that he, in fact, received proof of the rendering of the services and of the condition and extent of the assets.

The subject matter being within the jurisdiction of the Surrogate, if it be shown that he acquired jurisdiction of the parties, his decision is conclusive, except upon an appeal from his decision.

The cases cited in The People of the State of Michigan v. The Phœnix Bank of N. Y., ( 4 Bosw., 379 -381,) sustain this proposition.

Even if no proof of the claims of the alleged creditors was taken by the Surrogate, his decree cannot be avoided collaterally for that cause. If it could be, then it would not be enough to prove that witnesses were sworn and examined before the Surrogate; without showing, in addition, that the testimony related to the matter before him, and presented something for the judicial mind to consider,

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and this would be virtually retrying the proceeding on its merits in a collateral action.

If enough be shown to make it affirmatively appear that the Surrogate acquired jurisdiction of the person of the administratrix, in the proceeding before him, I am of the opinion that the decree must be treated as obligatory, in this action.

But a new trial should be granted, because enough was not proved or admitted to establish the fact that he acquired such jurisdiction.

The proof, as to the contents of the executions, was meagre. The attorney testified that he used “the ordinary printed blank executions, directed to the Sheriff of this county.” He says, “I put the title I have mentioned in each of the collections.” The only title he had mentioned is stated in the further testimony, viz.: “I told the title of the case to Mr. Kipp, ‘In the matter of the claim of Feely, Mahoney and McLaughlin against Adeline Gunter;’ we searched under that title.” He says, “I directed him to return these executions to the office of the Olerk of the Supreme Court of the City and County of Hew York. I signed them as attorney, and tested them in the name of T. W. Clerke, one of the Justices of the Supreme Court.”

It is difficult to determine from this evidence what was the form of this execution.

The form of the execution is prescribed by the Laws of 1837, p. 535, § 64; and Laws of 1844, p. 91, § 2. Ho other volumes of the Session Laws have been cited relating to this point. In 3 R. S., (5th ed.,) p. 366, § 18, the 64th section of the act of 1837 is inserted, but at the foot of the page is a note, which states the fact that this 64th section was repealed in 1844, but that note does not state the alteration made by the act of 1844, as to the form of the execution.

The 2d vol. of the 4th ed., p. 421, §§ 17,18 and note at the foot of the page, are equally obscure in their statement of the law.

It should appear that the executions issued, complied,

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in the substance of the contents, with the requirements of the statute.

Unless there be some statute on the subject, which has not been called to our attention, it does not appear that the executions alleged to have been issued, conformed in form or substance to the statute; as the only statute regulating the matter, so far as we are at present advised, is that of 1844.

For the reasons stated, I think a new trial should be granted, with costs to abide the event.

The sole foundation of the plaintiff’s claim is an order of the Surrogate of Queens county, reciting the issuing of a citation by him, to show cause, on a previous day, before him, why he should not decree payment, by the defendant, Mrs. Gunther, of certain debts claimed by three persons severally, for services separately rendered by them, at the request of the intestate, whom she represented, and the due proof, before him, of the service of such citation upon her personally. Such order then adjudges that such defendant pay absolutely to such persons severally, separate sums of money. There was no other proof and no admission of the making of any application to such Surrogate; of his issuing any citation; of the service of such citation, or of any inquiry or proof before such Surrogate. Unless this court can, from such order, presume, prima facie, those facts, so as to sustain the jurisdiction of the Surrogate, over both the subject matter and person, the plaintiff’s case was not made out.

As the application to the Surrogate, if made, was so made before eighteen months from the time of the appointment of the administratrix, (2 R. S., 92, § 52,) it must be assumed to have been made under the provision of the statute allowing a decree- for the payment of debts at the end of six months from that time. (2 R. S., 116, § 18.)

It has been settled that the Surrogate’s Court is entirely a creature of the statute, and of inferior and limited jurisdiction, and therefore his power to make any decree,

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depends upon his having jurisdiction of the subject matter and acquiring jurisdiction of it and the person, and proceeding in conformity with the statute. (Dakin v. Hudson, 6 Cow., 221 ; Bloom v. Burdick, 1 Hill, 130 ; Corwin v. Merritt, 3 Barb., 341 ; People v. Barnes, 12 Wend., 492 ; People v. Corlies, 1 Sandf., 228 .) The authority of the Surrogate to decree the payment of debts is limited. Ho general jurisdiction is conferred on him to adjudicate whether a debt is due as between the parties. (Fits Patrick v. Brady, 6 Hill, 581 ; Magee v. Vedder, 6 Barb., 352 ; Wilson v. Baptist Educ. Soc'y of N. Y., 10 Barb., 308 ; Disosway v. Bank of Washington, 24 Barb., 60 .) It is true, some decisions in the Surrogate’s Court of Hew York county, intimate that the Court has power to pass on a debt, in decreeing final distribution. (Hall v. Bruen, 1 Bradf., 435 ; Babcock v. Lillis, 4 Bradf., 218 .) Those decisions are undoubtedly correct, in reference to such proceeding in rein, by which the rights of all parties are disposed of, in the fund in the hands of the administratrix, (2 R. S., 95, § 71;) but that principle does not dispose of the question of a right to absorb, by a previous judgment, all the funds of the estate. So far as such decisions conflict with the well reasoned opinion in the case of Disosway v. The Bank of Washington, (ubi. sup.,) and the authorities cited in it, I think they must yield.

The power of passing upon a claim, by the Surrogate, and decreeing its payment absolutely, in advance of a final settlement of the estate, would give an applicant to him immense advantages over every other mode of establishing a claim against the estate. In the final distribution of the estate, unliquidated claims are placed last. (2 R. S., 87, § 27, 1st ed.) If a claim is presented to an administrator and rejected, unless an action at law is brought in six months, the claim is barred as to any funds distributed to claimants of inferior degree, or legatees. (2 R. S., 89, §§ 38, 39.) In an action against a representative of a decedent, he has a right to show debts of a prior class unsatisfied, and judgment can only be rendered for the

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residue of the assets applicable to such claim, after paying those prior ones. (2 R. S., 88, § 31.) Ho execution can issue upon any judgment in a court of law, against a representative, until au account is rendered, or the Surrogate orders it, and he is only to allow execution for such sum as may be a just proportion of the assets applicable to such judgment. (§ 32.) An order to show cause is to be applied for, on which the Surrogate is to make the order for applying the assets, (2 R. S., 116, §§ 19, 20,) and it was considered necessary to provide expressly that such order should be conclusive evidence of assets. (2 R. S., 116, § 21.) Was it intended that all these barriers for the protection of the estate, should be thrown down in case of an application to pay a debt six months after the grant of letters of administration ? Would the payment by the administratrix be a defense to an action by others against her or on her bond? If so, by mere collusion, not always easy to be proved, where craftily managed, all the security of other creditors might be swept away. It is claimed in this case, that the adjudication against the administratrix is conclusive that the debt was due, that either there were no others entitled to a preference, or there were assets sufficient to pay all, and that any inquiry as to the propriety of issuing an execution against the assets was unnecessary; the statute having enabled them to have á decree against an executor docketed, (Sess. Laws of 1844, ch. 104, § 2,) and an execution issued thereon, as though the same were a judgment of the Court of Common Pleas.

In regard to legatees, it is provided that the Surrogate shall ascertain that thete is at least one-third more assets than is sufficient to pay all debts, legacies and claims against the estate then known: He might, in his discretion, allow any portion of any legacy necessary for the support of the legatee, upon bonds of indemnity. (2 R. S., 98, § 83; Seymour v. Butler, 3 Bradf., 193 .) Was it intended that there should be no such protection in case of debts ?

If an application was necessary to give the Surrogate

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jurisdiction generally, there should have been some extrinsic evidence that such application was made; and the mere making of a decree is no evidence that an application was ever made. If the application, however, was made, it was necessary to serve the citation to acquire jurisdiction of the person. If any evidence of such service was before the Surrogate, possibly his decision upon its sufficiency was conclusive, and in this case the Surrogate certified that he had proof of such service; this was at least prima facie sufficient. But there is no evidence that any allegations or proofs were produced to justify the order of the Surrogate; there is no certificate to that effect in such order. It does not follow, in my view, that because it is necessary to show that the Surrogate took proof as to certain facts, this Court can inquire collaterally into the validity or legality of his decision. His own decision that the evidence before him established certain facts, and perhaps even that he had evidence to establish • them, might be sufficient to preclude inquiry into the sufficiency of such evidence, or even the fact that it had been taken. In Hovey v. Smith, ( 1 Barb., 372 ,) it was recited in the decree that it appeared that a preference of .some debts over others was beneficial to the estate, and it was held conclusive of that fact. Without some evidence to the contrary, non constat, but that the Surrogate held he had power to decree payment of a claim as a debt upon failure of the party to appear, without any inquiry. The order produced certainly sustains that view, and yet- he as certainly had no such power. There must be some shadow of inquiry to justify the act, something to show that the Surrogate thought he had evidence before him to warrant Ms order. In Superior Courts, no. judgment is given against a party by default, unless on a written instrument, without some proof, (Code, § 246,) and in Justices’ Courts it is expressly required, (Code, § 64, subd. 8.) Unless, therefore, it appeared to the Surrogate’s satisfaction that the debt was proved without opposition, or admitted, and that there were assets enough to pay it and all other debts

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of equal degree, he ought not to have made the decree. Merely having jurisdiction of the subject matter, and obtaining it over the person by service of the citation, does not give the Surrogate a right to make any decree for the payment of any sum, however great, against an executor; he must exercise some judicial functions, besides' giving judgment; in other words, exercise jurisdiction as well as possess it. (Germond v. People, 1 Hill, 343 .) This principle was recognized in Brittain v. Kinnaird, (1 Brod. & Bing., 432,) cited in The State of Michigan v. Phenix Bank, ( 4 Bosw., 380 .) Justice Dallas in that case said: “ He (the magistrate) is hound to inquire as to the fact, and, having inquired in regard to it, his conviction is conclusive of it.” In Supervisors of Onondaga v. Briggs, ( 2 Den., 26 , 33,) cited in the same case, Bronson, J., says: “ A power to hear and determine necessarily carries with it one to make the judgment obligatory.” A judgment without affording a party a hearing, is void. (People v. Soper, 7 N. Y. R., 428.) An inquiry into jurisdiction is always admissible. (Chemung Canal Bank v. Judson, 8 N. Y. R., 253; Dobson v. Pearce, 12 N. Y. R., 156.)

As, therefore, it does not appear on the face of the order, or by extrinsic evidence, if that is admissible, that the Surrogate made any inquiry on the return of the citation, his decision was not binding.

The testimony as to the form of the execution was also not clear. By statute, the Surrogate’s certificate is to be filed with a clerk of a Court of Common Pleas, and entered on the docket of that Court. (Laws of 1844, ch. 104, § 2.) This does not make it a judgment of that Court. (Davies v. Skidmore, 5 Hill, 501 ,) although execution is to be issued as if it were. But such execution must recite the decree and its docket, and then command the Sheriff to levy the money. Bo such form seems to have been adopted. The attorney testified he used “ the ordinary printed blank executions, directed to the Sheriff of Bew York County,” “ to collect in the matter of the claims” he had just stated. They were tested in the name of a Justice of the Supreme

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Oourt, and directed to be returned to a Clerk of that Court. The Code requires an execution to state the Court, the county where the transcript is filed, the names of the parties, the amount of the judgment, the amount due, and the time of docketing; there is no evidence that this was done. ÍTo reference seems to have been made in them to a County Oourt or Court of Common Pleas, and the Sherriff, on examining them, would not have been able to find any warrant in law for levying an execution issued, “ in the matter of certain claims,” out of the Supreme Court, particularly as there was no statement of the decree or its docketing. Whether the County Courts are successors of the Courts of Common Pleas, under the new Constitution, (Art. 6, § 14,) or not, and whether the Statute of 1844 is repealed for want of the proper Court in which to file the Surrogate’s certificate, are questions which may hereafter arise, in case the copies of the executions taken by the attorney shall be hereafter produced. The issuing and return of a proper execution is a necessary jurisdictional fact to the assignment of the bond, if the Surrogate acts ministerially in making it. If he acts judicially, the defendants should have had notice of the application.

For the defect of proof of the proceedings before the Surrogate, on making, the first order, and of the contents of the executions, or else the defect of the executions themselves, I think this case should go back for a new trial.

A new trial must be accordingly ordered on the exceptions, and the verdict set aside, with costs to abide the event.