4 Johns. Ch. 549 | New York Court of Chancery | 1820
The point that meets us at the very threshold of this case, and which seemed to be very lightly touched at the hearing, has appeared to me, upon examination, to be insurmountable. I cannot discover that the Surrogate of New-York had authority to grant letters of administration in this case, and the plaintiff, therefore, shows no title to appear in the character he has assumti?.
In the note to the case of Cleland v. Cleland, (Prec. in Ch. 63.) it is stated, that the objection that the administrator was not made a party defendant to a suit, was overruled, because the wife was charged as administratrix, and confessed in her answer, that she had possessed and admi-, mstered the personal estate of her deceased husband, though
The plaintiff does not appear to have had any particular right or claim to sue out letters of administration on the estate of the testator; and his title to sue is destitute of every adventitious aid and presumption. We are driven, therefore, to discuss the strict point of law, whether the surrogate had jurisdiction in the case.
The Court of Probates, consisting of a single Judge, was recognized in the 27th article of the Constitution ; and by the act of the 16th of March, 1778, organizing the government, the Judge of that Court was declared to be vested with all and singular the powers and authorities, and to have the like jurisdiction, in testamentary matters, which the governor of the colony of New-Yorh had exercised, as Judge of the Prerogative Court, or Court of Probates of the colony. Under this authority, the Court of Probates issued, exclusively, letters testamentary, and letters of administration, upon proof taken, as well by the surrogates, as in that Court; and this practice was continued until the
Under the last act, Surrogates in each county were authorized to grant letters testamentary, and letters of administration with the will annexed, and letters of administration of persons dying intestate “ within their respective counties;” and the same were declared to be as valid as if issued by the Court of Probates. But in all cases of persons dying “ out of this state,” or within this state, “ not inhabitants thereof,” their wills were to be proved, and administration of their personal estates granted by the Judge of Probates, “ in the manner heretofore used, and before, or by no other person.”
The revised act of the 27th of March, 1801, declared, also, that the Judge of the Court of Probates, was vested with all the powers and authorities of the Court of Probates of the colony of New-York, “ exceptas was therein otherwise providedand in that act, the powers of the Surrogates were continued, with some little alteration in the phraseology of the provisions. The Surrogates were declared, by the third section of the act, to have, “ except as to persons who may not, at the time of their decease, be inhabitants of this state,” the sole and exclusive power to grant letters testamentary, and letters of administration of the goods of persons dying intestate, or with the will annexed, of all deceased persons who, “ at, or immediately previous to their death, shall have been inhabitants of the respective counties of such Surrogates, in whatever place the death of such persons may have happened.” And in the 12th section of the act, it was declared, that in all cases of persons dying “ out of this state,” or of persons dying within this state, “ not inhabitants of this state,” their wills may be proved before, and administrations of their personal estates granted by, the Judge of Probates, “in the manner heretofore used, ns well as by any of the said Surrogates.”
I should, therefore, have had doubts upon the construction given to the Surrogate’s powers by the decision in Weston v. Weston, if the question had arisen, de novo, before me; but I do not feel myself at liberty to seek after another construction, in opposition to such high authority; and especially in a case where the point came properly and directly before the Supreme Court. It would be a great public inconvenience, and tend to render the law vague and uncertain, to introduce conflicting decisions upon the construction of the powers of public oflicers, when those powers are in constant activity.
Assuming, then, (as I think' I am bound to do, under a proper sense of respect and comity) the authority and validity of the construction given to the Surrogate’s powers, by the case of Weston v. Weston, we are next to inquire, whether the Surrogate of the city of New-York has other and greater powers, in the given case.
The act of the 11th of April, 1315, (Sess. 38. ch. 157.) substituted a public administrator for the city oí New-York, in lieu of the Chamberlain, in the above case; and the consolidated provision in the act of 1802, was re-enacted in the same words, but with additional provisions, which would seem, by implication, to have given jurisdiction to the Surrogate, even to the extent of the whole case, as stated in the act of 1802. It declares, that if the widow, or next of kin, shall not apply within thirty days after such citation, as is therein after directed, to the Surrogate or Judge of the Court of Probates, “ as the case may be,” for administration, that then administration was to be granted to the public administrator. The citation, therein directed, is to be issued, not
But, if it be admitted, that the Surrogate of New-York has greater powers than the Surrogate of Onondaga county, it is only in the case of persons dying intestate, and leaving goods and chattels within the city and county of New-York. All the special powers (if any there be) granted to the Surrogate of New-York, in extension of the ordinary jurisdiction of the Surrogate, are confined to the case of persons resident abroad, dying intestate, and leaving goods and chattels in New-York. The revised act of 1813, in the 3d, and again in the 10th section, has clearly noticed, and marked the distinction between an administration upon the estate of a person dying intestate, and an administration with the will annexed; yet, in the 17th section of this act, and in the subsequent acts on that subject, the distinction so material in itself, so well known in law, and so familiar in the language of the Legislature, is omitted, and the new and special provisions for the city of New-York, are confined to the case of persons dying intestate.
In the case before me, Phineas Miller did not die intestate. He made a will, appointed executors, and one of them administered, and her powers and acts are recognized in the plaintiff’s case : nor does it appear that Ph. Miller, the testator, left any goods and chattels in the city of New-York. If the claim upon the defendant be goods and chattels, yet ■the bill admits that the defendant resided in Dutchess county. Debts due by specialty are said to be bona notabilia, in the
There may be no good reason why the Surrogate of JYew-YorJc should not have power to grant letters testamentary upon testators’ wills, as well as letters of administration upon intestates’ estates; and it might be very convenient that he should have the power; but if it is not contained in the statute, it certainly cannot be assumed. The argumentum ab incomenienti cannot be applied to extend the limits of power, when the language of the statute, defining the limit, is explicit, and its meaning clear, without any visible mixture of injustice or absurdity.
The power of proving wills, and granting administration, was originally vested in the Court of Probates; and though most of its jurisdiction is now transferred to the Surrogates, that is still the Court of Appeals from the acts tif the Surrogates, and it is the Court of general jurisdiction over the subject matter. There is some analogy, therefore, between the powers of the Surrogate and of the Ordinary, in England, and between the Judge of Probates and the Metropolitan of the province; and the rule may be applied to the Surrogate, which is applied to the Ordinary, that if "he grants administration in a case not within his authority, but in one that belongs to the Metropolitan, the same is absolutely void. (Allison v. Dickenson, Hardres, 216. Holt, Ch. J. in Black-borough v. Davis, 1 P. Wms. 41. Hilliard v. Cox, 1 Salk. 37. Godol. 70.) It is, also, a general principle, applicable to all Courts of limited jurisdiction, that they must act with-' in the limits of their authority; and it must appear upon the
I feel, therefore, constrained (however reluctantly) to declare, that the plaintiff has not shown a title to sue here, as the representative of Phineas Miller, deceased, and that the bill must be dismissed; and I shall do it without costs, and without prejudice.
Decree accordingly.
After a ple> is overruled, the same defence may be insisted on byway of answer.
Though a ly "ntiüedFto tkn'hecannot taking regular mín!stra<tion.d"
Jurisdiction of the Court of Probates,
Surrogate of New-York.