Farley v. McConnell

7 Lans. 428 | N.Y. Sup. Ct. | 1872

Miller, P. J.

The defendant’s counsel presents two objections to the validity of the plaintiff’s appointment as administrator:

First. That the bond was defective, inasmuch as it is conditioned that the plaintiff, as administrator, shall obey “ all orders of the county judge of Chemung county ” instead of the “surrogate” of that county.

Second. That the petition for letters of administration does not affirmatively show that the petitioner was examined touching the manner of the deatli of the intestate.

■ As to the first objection, the fifteenth section of the sixth article of the Constitution of the State provides that “ the county judge shall also be surrogate of the county; but, in counties having a population exceeding 40,000, the legislature may provide for the election of a separate officer to be surrogate,” &c. The county judge is primarily ex officio surrogate, and, I think, until the contrary be made to appear, it must be assumed that he was surrogate, as the Constitution provides, and that the county of Chemung was not within the exception. But as the court have the right, I think, to take judicial notice of the population of counties and of their public officers, it follows that the county judge was in fact such surrogate who issued the letters, and whose orders the administrator was bound to obey. Such being the case, the bond was not defective, and in effect was the same as if the surrogate had been named in a county where that office was filled by another officer and was distinct and separate from the office of county judge.

Even if there was a mistake in the insertion of the wrong officer, as the intention is manifest the court will relieve against it. ( Wiser v. Blachly, 1 John. Ch., 607.) A strict and technical conformity to the statute is not essential to the validity of the bond, and it is sufficient if it conform substantially thereto, and does not vary in any matter to the prejudice of the rights of the party to whom or for whose benefit it is given. (2 R. S., § 56, § 33; Supervisors of Schoharie v. Pindar, 3 Lans., 8, 11.)

As to the second objection, it is, I think, without any foundation. The statute provides that, before any letters, of administration shall be granted, “ the fact of such person’s dying intestate shall be proved to the satisfaction of the surrogate, who shall examine the person applying for such letters on oath, touching the time, place and manner of the deathf &c. It will be noticed that the statute does not require that the petition should show the “ manner of the death;” and for anything that appears such examination may have been had by the surrogate, and in the absence of any proof to the contrary, as every intendment is in favor of a judgment, the legal presumption is that the surrogate performed his duty. I am also inclined to think that the statute in this respect is merely directory, and a failure to conform to its provisions is not a fatal objection to the validity of the letters issued.

Independent of the considerations presented, I am also of the opinion that neither one of the objections is of any avail, because the letters of administration being in due form and regular upon their face, they were sufficient to confer authority to the plaintiff and cannot he questioned in a collateral action. (Vanderpoel v. Van Valkenburg, 2 Seld., 190 ; 7 Paige, 397; 3 B. Ch., 281.) As the letters have been issued by an officer who had jurisdiction, they must he considered as valid until set aside by a competent tribunal, and are not open to an impeachment in a collateral proceeding. They were prima faeie sufficient, and cannot he disregarded without a judgment of a competent court declaring that they are invalid.

No error is manifest, and judgment must be ordered on the verdict for the plaintiff, with costs.

Judgment accordingly.