84 N.J. Eq. 324 | New York Court of Chancery | 1915
By the amended answer and cross-bill which defendant now seeks to file, this court is asked to disregard the official probate of a will, and to treat the will as a nullity, and refuse to construe its provisions, and to require the persons who have been appointed executors of the will to account to an heir for his share of the personal estate of the deceased which has come to their hands. If the averments of tire proposed amended pleadings are clearly inadequate to afford any part of the relief sought, it is obvious that the application to amend should be denied, for no benefits can be received through an impotent pleading.
It is manifest that the accounting which defendant seeks through his proposed amended pleading cannot be entertained. Should the probate of the will be set aside or disregarded an heir, as such,' does not thereby become entitled to an accounting
It has been repeatedly held in this state that a surrogate, in-admitting a will to probate, holds a court and exercises judicial-functions in the field prescribed, by statute, and that his decree or order of probate is to be reviewed by appeal and is not subject to collateral attack except for fraud or want of jurisdiction. The proposed amended pleading is a collateral attack upon the judgment of that court, and bases the attack upon the claim that the surrogate was without jurisdiction because of doubts which it is alleged arose on the face of the will which his order admitted to probate; no fraud is charged.
The statutory authority of the surrogate to admit wills to probate is as follows:
“The surrogates of the several counties of this state shall take depositions to wills and admit the same to probate, and grant letters testamentary thereon; but in case doubts arise on the face of the will, or a caveat is put in against proving a will, or a dispute arises respecting the existence of a will, the surrogate shall not act in the premises, but shall issue citations to all persons concerned to appear in the orphans court of the same county, which court shall hear and determine the matters in controversy.” P. L. 1898 p. 718; 3 Comp. Stat. p. 3816 § 13.
No adjudicated case in this state has at any time definitely determined the meaning of the expression “in case doubts arise on the face of the will.” In Myer's Case, 69 N. J. Eq. 793, 796, the suggestion is made by our court of errors and appeals that it may relate to erasures and interlineations. But, for present purposes, it may be assumed that the averments of the proposed answer and cross-bill disclose with sufficient definiteness that when the will here in question was presented to the surrogate for probate there appeared on the face of the will interlineations or erasures or mutilations which an accurate adjudication would have determined to be suggestive of such doubts as the statute confenrplates.
Nothing can be said to be more firmly engrafted in our jurisprudence than the principle that in the absence of fraud of the parties a judgment of a court of general jurisdiction cannot be collaterally impeached if the court had jurisdiction of the subject-matter of the controversy and the parties. White v. Crow, 110 U. S. 183. Jurisdiction, in the sense thus used, has been defined by our federal supreme court to be “the power to hear and determine a cause.” In the exercise of the power to hoar and -determine a cause which has been properly instituted, a court is necessarily called upon to determine matters on which its jurisdiction to proceed and award final judgment depends. It has accordingly been uniformly held that in the application of the principle first stated to cases in which the jurisdiction of a court of general jurisdiction embraces cases of the class to which the case belongs and the collateral attack is based upon a
The principles above stated relate alike to proceedings in rem and in personam. In proceedings in rem there are no adversary parties, and the only question of jurisdiction in such proceedings is the power of the court over the thing — over the subject-matter before the court — without regard to the persons who may have an interest in it; “all the world are parties.” Lessees of Grignon v. Astor, supra.
If the principles above stated, touching the exemption of judgments of courts of general jurisdiction from collateral impeachment, are applicable to a grant of probate by a surrogate’s court, I think it clear the proposed amendment here in question cannot be allowed. The claim made by the proposed amendment is not strictly a claim of want of jurisdiction. As already stated, want of jurisdiction over the subject-matter will subject the judgment of any court to collateral impeachment. The surrogate had jurisdiction of the proceeding before him. The statute confers upon the surrogate a general jurisdiction touching matters of probate of wills and defines his duties and provides an appeal for errors of judgment in the performance of those duties. The concrete claim here made is that the surrogate erred in the performance of his duties in a matter intermediate the inception of his jurisdiction of the cause "and his final decree therein, and that his error was in determining that no doubts arose on the face of the will, and was therefore an error in adjudicating a matter upon which his jurisdiction depended. The matter of probate was by proper proceedings brought before the surrogate in a case of a class within his jurisdiction and his jurisdiction over the individual case thereby attached. He was then required to determine, in a case properly before him, whether he should grant probate or issue citations, and to determine this, he was obliged to determine whether doubts arose on the face of the
From the decisions already referred to, it is obvious that if the present probate had been granted by the orphans court the present proposed collateral impeachment of that probate could not be entertained; but a distinction has long been recognized between judgments of courts of general jurisdiction and those of certain inferior tribunals of special and limited jurisdiction. Judgments of courts of the latter class have been denied that degree of exemption from collateral impeachment which is uniformly accorded to judgments of courts of the former class. The difference, in this respect, between the two classes of judgments, I understand to be this: In the former class, initial jurisdiction of the subject-matter of the proceeding being made to appear, another court will not by way of collateral impeachment look through or behind the judgment or decree for errors of judgment either in matters relating to jurisdiction or otherwise; while in the latter class, the court may on collateral impeachment look through or behind the judgment to ascertain whether there appears on the face of the proceedings every requisite to sustain the judgment. If these requisites are found to appear on the face of the proceedings of the inferior tribunal, the judgment is regarded as conclusive, as against collateral attack. In 23 Cyc. 1082, this latter statement is summarized as follows:
“And if the judgment of-an inferior court does affirmatively show the facts necessary to confer jurisdiction, then the same presumptions are indulged in favor of regularity and validity of its proceedings as are extended to the superior courts, and the record can be impeached and contradicted only in like cases and to the' same extent.”
In Lessees of Grignon v. Astor, supra, following Kemp’s Lessee v. Kennedy, 5 Cranch 173, and Ex parte Watkins, 3 Pet. 193, Mr. Justice Baldwin, in a case involving a collateral impeachment of a decree of a probate court, states the distinction as follows: '‘'The record is absolute verity, to contradict which there can be no averment or evidence; the court having power to make the decree, it can be impeached only by fraud in the party -who obtains it. A purchaser under it is not bound to look beyond the decree; if there is error in it, of the most palpable kind, if the court which rendered it have, in the exercise of jurisdiction, disregarded, misconstrued or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them, the title of the purchaser is as much protected as if the adjudication would stand the test of a writ of error; so where an appeal is given but not taken in the time prescribed by law. These principles are settled as to all courts of record which have an original general jurisdiction over any particular subjects; they are not courts of special or limited jurisdiction, they are not inferior courts, in the technical sense of the term, because an appeal lies from their decisions. That applies to 'courts of special and limited jurisdiction, which are created on such principles' that their judgments, taken alone, are entirely disregarded, and the proceedings must show- their jurisdiction;’ that of the courts of the United States is limited and special, and their proceedings are reversible on error, but are not nullities which may be entirely disregarded. They have power to render final judgments and decrees which bind the persons and things before them conclusively, in criminal as well as civil causes, unless revised on error or by appeal. The true line of distinction between courts whose decisions are conclusive if not removed to an appellate court, and those -whose proceedings are nullities if their jurisdiction does not appear on their face, is this: a court which is competent by its constitution to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence
It will be noted that the present controversy in no way involves the title to real estate. The bill is filed for the construction of a trust created by the will and involves no issue other than the ascertainment of trust duties of the executors. In controversies for the determination of the title of real estate the decree of probate of a will is not regarded as conclusive, no matter by what court such decree of probate may have been granted. In an action of ejectment, based on a devise of real estate, the probate is only prima facie evidence of the validity of the will, unless the action is brought more than seven years from the date of probate, in which case it is under certain restricted conditions made conclusive of the formal execution of the will, and it is regarded as prima facie evidence only by reason of the provisions of our statute to that effect. But devises of real estate stand upon a wholly different footing from matters of mere testament, as that term was originally and technically understood. In England the jurisdiction of probate of testaments was early conferred upon the ecclesiastical courts, and there remained, notwithstanding the right, subsequently recognized, of a testator to devise real estate. But the probate was not there regarded as competent evidence in a court of law on an issue involving the title of lands. The jurisdiction to grant probate was lodged in the consistory court of every diocesan bishop, the proof of the will being taken before the ordinary or his surrogate. When the testator owned personal estate of a certain amount in two dioceses — bona notabilia — the will was proved before the metropolitan of the province, by way of special prerogative; hence, called the prerogative court. Rol. Abr. 908; 2 Bl. Com. 508, 509. These probates before the ordinaiy or his surrogate, or before the pre
“That all wills in writing, attested by two credible witnesses, shall be of the same force to convey lands, as other conveyances being registered in the Secretaries office within this Province, within forty days after the testator’s death.” L. & S. Grants and Concessions 236.
And in 1713 and 1714 a similar statute declared that all wills thereafter made in the manner provided by the act, and regularly proved and entered upon the books of record or registers in the secretary’s office, should be sufficient to devise and convey land as effectually as if tire testator had conveyed the same in his lifetime, and that the books in which they were registered or recorded might be given in evidence and should be accepted and be sufficient evidence at all times and places. Pat. L. 5. After our independence, the act of December 16th, 1784 (Pat. L. 59), established our present orphans court. By section 4 of that act the ordinary was directed to appoint but one “deputy or surrogate” for each county. By section 15 the powers and duties of the surrogate, touching the
From the decisions already referred to, it is clear that the jurisdiction of probate of wills conferred by our Orphans Court act on our surrogates courts, orphans court and ordinary, has been uniformly regarded as essentially the same probate jurisdiction formerly exercised by the ecclesiastical courts of England and there administered by the surrogate, ordinary and metropolitan, and I think it may be said that the degree of conclusiveness attributed to the grants of probate of the ecclesiastical courts, except upon appellate review, in all matters in which tire title to real estate was not involved, has been always understood to obtain as to the similar grants of probate in this state by either the surrogate’s court, orphans court or prerogative court.
A grant of probate may thus be said to be peculiar* to itself, and, when considered with reference to its origin, history and purpose, it seems impossible to regard it, by whatever court issued, as a mere judgment of an inferior court whose judgments are denied the conclusive force attributed to the judgments of superior* courts. Nor can the surrogate’s court be regarded as a court of inferior jurisdiction when considered in connection with the, duties which it is required to perform. Its grants of pro
The decisions of our courts may be said to confirm these views. In Quidort’s Administrator v. Pergeaux, 18 N. J. Eq. 472, complainant, as administrator, had procured a money judgment against a defendant. He then filed a bill in this court in aid of his judgment at law to subject the equitable estate .of the judgment debtor in certain land to the lien of the judgment. Defendant sought to attack the validity of the letters of administration by evidence that decedent left a will. Touching that offer' the court said: “This evidence cannot be received, as the question of the right to administration cannot be examined here. The granting administration is exclusively with the ordinary and his surrogates. The grant, is a proceeding m rem, in the strict sense of that term. It constitutes the person to whom it is granted the administrator, whether rightfully or wrongfully granted; and it cannot be inquired into here collaterally. The act of the surrogate can only be reviewed by appeal to the orphans court, or prerogative court. Like the acts of all other regularly-constituted tribunals, the acts of the surrogate cannot be impeached collaterally. The only question that can be made is, whether he had jurisdiction. If the supposed intestate was not dead, or if letters lawfully granted to someone else were in existence, the grant would be void.” It will be observed that the proceedings before the surrogate are here placed upon precisely the same plane as those of the orphans court, or even common law courts of general jurisdiction, so far as collateral impeachment is concerned. As is held in Plume v. Howard Savings Institution, supra, errors of judgment in all matters which the statute requires the tribunal to adjudicate, including matters upon which jurisdiction is dependent, in a proceeding lawfully instituted of a class within the jurisdiction, cannot be reviewed except by appeal. If the supposed testator or intestate was not dead at the time probate proceedings were instituted, probate jurisdiction
Turning to our statute, as it presently exists, we find that by section 156 of our Orphans Court act (3 Comp. Stat. p. 3872) it is provided:
“The probate of wills, and letters testamentary, of administration and of guardianship, issued by the surrogate under this act, shall have the same validity and effect as the probate of wills and letters of administration and guardianship issued by the register of the prerogative office in the name of the Ordinary, with the seal of office affixed,”
and section 17 of the same act provides the form for letters testamentary to be issued by the surrogate, by which form the surrogate is made to certify under his hand and seal of office that the will, a copy of which is to be annexed to the letters, has been proved before him by the executors therein named, and that the executors are duly authorized to take upon themselves the administration of the estate of the testator, agreeably to the will. By section 158 of the same act the surrogate is required to record all wills proved before him or before the orphans court, together with the proofs thereof, and also the letters testamentary by him issued; this record, and certified copies thereof, are given the same force and effect as like records in the prerogative office, and are to be received in evidence in all courts of this state. The record of the will, the proofs taken, and the statutory certificate of probate, are thus made the statutory memorial of the surrogate’s judgment of probate, and this record is by statute given the same force and effect as a like record in the prerogative office, and is ordered to be received in evidence in all courts of this state.
In view of the decisions and legislation above referred to, it seems impossible to find justification for looking behind this judgment of probate in a collateral proceeding, in a case in which the judgment contains all matters specified by the statute for that purpose, for alleged errors of the surrogate in matters jurisdictional, or otherwise, which the statute required the surrogate to pass upon pending the proceeding before him and which he has necessarily passed upon, with the evidence before him, be
Another circumstance should be also considered. The will here in question was probated more than four years ago, and since that time the executors have been executing their trust. The Orphans Court act (section 202) provides an appeal from a surrogate’s grant of probate and limits the period of appeal to three months for residents and six months for non-residents; and it is a purely legislative function to prescribe such limitations and their consequences. Myer’s Case, 69 N. J. Eq. 793, 796. The statute thus contemplates that errors of the surrogate in granting probate shall be reviewed by appeal within the period specified. Defendant claims that the alleged error of the surrogate has been only recently brought to his attention; but, assuming that to be true, the fact remains that the opportunity for ascertainment has at all times existed. He knew of the death of his father and of the probate of the will, and by due diligence could have discovered, pending the period allowed for appeal, all that he now claims to know. Laches may be equitably attributed
It should also be observed that this attack upon the probate is not made in this court, by reason of any peculiar jurisdiction exercised by a court of equity over matters of this nature. No fraud is alleged. Vincent v. Vincent, 70 N. J. Eq. 272. The proposed defence must be here treated the same as a similar defence made in a court of law to an action of replevin brought by the executors to recover personal property of the testator.
I am convinced that leave to file the proposed amended pleading must be denied.