Gale v. Edsall

Headnote

In a proceeding for the admeasurement of dower, if one of the admeasurers dies before the execution of his trust, the vacancy may be supplied by a new appointment made by the surrogate for the time being, although the original appointment was made by his predecessor.

This was an action of ejectment, tried at the Orange circuit in September, 1830, before the Hon. James Emott, then one of the circuit judges.

The action was brought for the recovery of lands assigned to the plaintiff as dower, by admeasures. In August, 1825, Wheeler Case, then surrogate of the county of Orange, on the application of the plaintiff; appointed Hector Craig, John Móffat and Hezelriah Moffat admeasurers to ad-measure and assign to the plaintiff one third part of certain lands as her dower, The admeasurers were duly sworn, but before executing the trust, Hezelriah Moffat one of them, died. In September, 1838, Daniel H. Tuthill, then surrogate of Orange, made an order, reciting the.previous order of August, 1825, and the death of Hezelriah, Moffat, one of the admeasurers, setting forth the petition of the plaintiff for the appointment of a disinterested freeholder, to complete the ad-measurement in connection with Hector Craig and John Moffat, the surviving admeasurers, and appointing John W. Wilkin, in connection with Hector Craig and John Moffat, to make or to complete the admeasurement begun in the life time of Hezekiah Moffat. The admeasurement was accordingly made-by Wilkin and the two surviving admeasurers, and a report filed on the 23d September, 1829, assigning to the plaintiff the premises demanded in this action. The defendant insisted that the order of the surrogate made in September, 1828, for the appointment of Wilkin was void, on the ground ■that the surrogate then in office had no jurisdiction in the matter. The judge over-ruled the objection, and the jury, under his direction, found a verdict for the plaintiff. The defepdaftt moved to set aside the verdict.

There is no provision in the statute, 1 R. L. 60, § 3, to supply a vacancy occasioned by the death of an admeasurer. When the appointment is once made, the power of the surrogate is exhausted. This statute creating a mode of proceeding unknown to the common law, must be strictly construed. Besides, it does not appear that notice of the new appointment was given to the defendant; notice of proceeding under this act, although not expressly required by the statute, must be given, or they will be set aside. 6 Johns. R. 281. 9 id. 245. The defendant was as much entitled to notice of the substituted appointment as he was of the original appointment, and that such notice was given should affirmatively appear, or the surrogate has no jurisdiction. 5 Wendell, 281.

The surrogate’s court is a court of record, and it is incidental to the powers of such a court to supply a vacancy occasioned by the death of a person appointed to execute a trust under its authority, as in the case of referees, commissioners to make partition, &c. A surrogate has the right to complete, proceedings commenced by his predecessor. The objection of the want of notice cannot be urged here, not having been taken at the circuit; besides, the court will intend that the fact appeared that notice was given. 7 Cowen, 353.