137 N.Y.S. 97 | N.Y. Sur. Ct. | 1912
On the return of a citation, issued pursuant to section 2661a, Code of Civil Procedure, and heard on a peti
But as I did not require respondents to reduce their positions to writing, the respondents’ motion, taken orally, is sufficient, if entered on the record, to present their positions in this matter. If the surrogate’s jurisdiction over this matter is wholly statutory, the oral objection certainly suffices. In any event I am not inclined to insist on technical forms, or to require a written article, allegation or position in this court when objections may be just as well stated oftentimes orally. The simplicity of the procedure in this court has at all times,
The present jurisdiction of the surrogate while often said to be statutory (Matter of Camp, 126 N. Y. 390; Matter of Runk, 200 id. 447) is sometimes only partly dependent on statute, while at others it is wholly dependent. This is a distinction often lost sight of by those who deal with this subject. If the statute conferring jurisdiction on the surrogate refers to an established and older probate jurisdiction, which is not statutory, the surrogate’s jurisdiction cannot be said to be purely statutory, and courts must take some account of this distinction. It is only when a statute is the exclusive and original source of the jurisdiction that a court is statutory in the true legal sense. The common law jurisdiction of the Supreme Court, for example, is given primarily by the constitution of the state; it is, in other words, organic or recognized by the fundamental law of the state. Nevertheless much of the jurisdiction itself is derivative or historical, although the immediate source is the constitution of government. Any one familiar with this topic recognizes that the jurisdiction of the fundamental common law courts was transferred to the Supreme Court, and without that the jurisdiction of the Supreme Court would be very different from what it is. What is recognized as true in the instance of the Supreme Court, which is the great general court of original jurisdiction in this state, is equally true of the courts of the surrogates. The immediate source of the jurisdiction of the courts of the surrogates is, of course, the statutes of the state; but whenever a statute confers an historical and ready-made jurisdiction of
When general probate jurisdiction is conferred on surrogates by statute, without any definition whatever of probate-jurisdiction, it is necessary to have recourse to the meaning' of these terms in the system of law which by constitutional reservation has been made the fundamental law of this state. By such reference it becomes apparent that the real source-of the probate jurisdiction, in fact, is historical, although the real source is often treated as destitute of legal recognition because in terms it is conferred by a statute which is. only the more immediate authority for the jurisdiction. One of the most important of mediums for the transfer of the common law of an older state to a newer political dependency is the translation of established jurisdictions to the officers of the new government. When such a jurisdiction is transferred, it carries with it a great body of applicable law. Had the original commissions to probate officers of New York: expressed, for example, that they were to have the jurisdiction of the Roman praetor, instead of the jurisdiction of the-delegate of the Ordinary of the Ecclesiastical Courts of England, how different would be the existing law relative to judicial powers and jurisdiction in probate proceedings.
This excursus on the origins of probate institutions is not so remote from the matter in hand as it may seem. Where a matter is clearly within the general probate jurisdiction, conferred in general terms on the surrogates, and the petition.
But while some branches of the surrogate’s jurisdiction are only indirectly dependent on modern statutes, a large corner of the existing jurisdiction of the surrogates, as already pointed out, is wholly statutory, and there the statute must be followed with great precision, or the proceedings, like all statutory proceedings in courts of first instance, are coram non judice. Wherever the statute, then, is the exclusive source of the surrogate’s jurisdiction, it would seem that the objection to the jurisdiction may be taken orally, and at any stage of the proceeding provided such objection appear in the record. The existing proceeding under section 2621a (Code Civ. Pro.) for the production of an alleged will is prima facie statutory. But let us examine this point and ascertain how far the jurisdiction of this proceeding is statutory.
Formerly, and before the statute made and provided for production of testamentary scripts (Code Civ. Pro., § 2621a, chap. 358, Laws of 1910), the surrogate, sitting as a court of probate, had an inherent power to cause the parties before it to bring all testamentary scripts into court on a probate proceeding. For example, if the executors propounded a script purporting to be a testamentary paper, which was not in fact a last will and testament, any party cited to its probate might allege a later paper and ask for the production of all other testamentary scripts in the hands or custody of such proponent, and the proponent might then discharge the monition of the court to that end by an oath to the effect that no other
The statute under present consideration (Code Civ. Pro., § 2621a) is certainly an enlargement of such an incidental power of the surrogate in course of probate, in that the recent statute extends the jurisdiction of the surrogate to a person claiming to be interested in the estate of a decedent who is not cited on the probate proceeding, and section 2621a contemplates and provides for a new citation, directed to those who are not parties to any existing proceeding. Is this the extent of the remedial action or reform of the legislature in enacting section 2621a of the Code of Civil Procedure? It may be that the new section was only an enlargement of an existing power and that such was the assumption of the makers of the statute—there are circumstances which seem to point to such a conclusion.
It will be noticed that section 2621a of the Code of Civil Procedure purports to be an amendment to an article of the existing statute relating to probate of a will and grant of letters thereupon. Its present situation on the statute book indicates some reference to the pre-existing practice and procedure in probate causes. Section 262la is followed by a sec
An attempt has been made to point out what inherent powers the surrogate has in probate has in probate proceedings over the production of alleged testamentary scripts not produced. It would seem that the legislature, in enacting section 2621a may be taken to have had reference to existing probate law and to the effect and power of decrees in rem throughout the civilized world. From its situation in the statute book, section 2621a of the Code of Civil Procedure must be taken to refer to proceedings in fieri, and not to proceedings after decree.
If the new statute was in affirmance of an existing power of the surrogate, and merely for the purpose of extending such power to persons not parties to a probate proceeding, it would appear probable the statute did not intend to operate in a case where a decree of probate had already been made, unless such decree was first vacated or set aside. By the petition in this proceeding it is set out that the surrogate has already made a decree of probate, and that such decree is duly entered. Such a decree, or sentence (as it was with accuracy formerly termed by Surrogate Bradford and the Court of Appeals and the Court of Errors, Cf. 4 Paige, Ch. 626), in so far as it concerns personal property, is one in rem and is binding on all the world, including this petitioner. Bogardus v. Clark, 4 Paige, Ch. 623; Hoyt v. Jackson, 1 Dem. 443, 456; Heyer v. Burger, 1 Hoff. Ch. 1, 11; Matter of Wood, 8 N. Y. Supp. 884; Anderson v. Anderson, 112 N. Y. 104, 113; Matter of Kellum, 50 id. 298; Vanderpoel v. Van Valkenburgh, 6 id. 190, 199; Roderigas v. East R. Sav. Inst., 63 id. 460; Kelly v. West, 80 id. 139, 145; Matter of Killan, 172 id. 547, 564; Stiles v. Burch, 5 Paige, 132; Whicker v. Hume, H. L. Cas. 124; Concha v. Concha, 11 App. Cas.
Decrees of probate, like other decrees in rem, are recognized all over the civilized world. Great faith attaches to
There is committed to the surrogate by due public authority an established probate jurisdiction of great importance and indefinite antiquity. Of all the courts of this state the surrogate alone has plenary power in the first instance to determine the validity or invalidity of a will of personal property. Neither a court of law nor a court of equity has any authority to look at a will disposing of personal estate, until such will has first been admitted to probate. In this department the jurisdiction of the surrogate is exclusive (Anderson v. Anderson, 112 N. Y. 104, 113; Vanderpoel v. Van Valkenburg, 6 id. 190, 198; Matter of Wood, 8 N. Y. Supp. 884; Heyer v. Burger, 1 Hoff. Ch. 1; Stone v. Forsyth, 2 Doug. 707, cited in Catnall v. Hankey, 2 Moore P. C. 351; Allen v. McPherson, 1 Cl. & Finn. [H. L.] 207 and see 2 Lee, 541; Matter of Connell, 75 Misc. Rep. 574), and the sentence of the court is binding on all other courts until regularly reversed and set aside. Herst v. Beach, 5 Madd. 351; Matter of Carter, 74 Misc. Rep. 1. The rule enunciated in these cases just cited is as old as Glanville and probably older in origin. Tractatus de Legibus, ed. 1607, lib. III, chap. 8. The present decree for probate, while it stands, is a sentence that there is no other last will, and it is a complete bar to this proceeding at this time under section 3631a of the Code of Civil Procedure.
It has been said that a matter which is at issue in legal
If any one after a decree of probate of a will of personalty and after letters testamentary have issued to executors may, on a mere informal suggestion under the new section, at any time, no matter how remote, allege another will, what have decrees of probate become .worth? All decrees in rem would be prejudiced by such a construction of this statute. The qualified executors may at any time be held up at any stage of a most important negotiation, transfer or sale, by one invoking this section, although he has no sensible knowledge or any information other than a bare suspicion of the suppression of a later testamentary script. A construction of the new section which would tolerate such an anomaly would tend to infinite mischief and be most disquieting to those who lean on our decrees of probate and letters testamentary. Such a construction of the new section, invoked in this proceeding, ought not in all events to be given in the first instance by the surrogate who passed the decree of probate.
As an important jurisdiction is committed to the surrogate’s care for the moment, he should not fritter it away by such a construction of a very modern statute as may be destructive of the jurisdiction itself, for it may not have been intended, by the legislature that the new statute should have any such grave consequences. The statute may be in affirmance of an existing jurisdiction. When the surrogate is advised by the final authority of his superiors to the contrary, he will be compelled to decree accordingly. Any other construction at this time might be regarded as an offense to the
The real grounds of objection, taken by the respondents, have not been mentioned or passed on, because, if this opinion is right in the conclusions heretofore stated, the consideration of such objections becomes unnecessary at this stage. It must be confessed that the surrogate has some grave doubts as to the true meaning and application of the new section invoked in this proceeding. If he is found to be in error in his construction of it, it will be time enough, when so advised by the remittitur to pass on the objections of respondents.
Section 2621a confers upon the surrogate a discretion only on the return of a citation which it is mandatory on him to issue in the first instance. In view of the considerations already offered and the decree of probate of the will of Mr. Work shown by the very petition herein, it is my opinion that, such decree being in rem, is binding on the petitioner, and that the petition at this stage is irregular.
The petition will, therefore, be dismissed, and it is so ordered.
Petition dismissed.