Jackson ex dem. Jenkins v. Robinson, 4 Wend. 436

Jackson ex dem. Jenkins v. Robinson

4 Wend. 436 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

However extraordinary or erroneous be the determination and proceedings of a court of limited authority, if it acts within its proper jurisdiction as to the subject matter, place and person, its judgment or decree cannot be impeached or invalidated in a collateral action.

. This case presents the question—what is necessary to give a surrogate jurisdiction where real estate is directed to be sold to supply a deficiency in the assets to pay the debts of a testator or intestate? The argument on behalf of the defendant seemed to proceed on the assumption that an actual deficiency in the assets must exist in order to confer jurisdic*441tion. By an examination of the act relative to the court of probates, (1 R. L. 450, § 23,) it will be found that the surrogate, if he be the officer for the county in which probate of the will or letters of administration were granted, is required to act on the suggestion of an administrator or executor of a deficiency of assets, and on receiving an account of the personal estate and debts of the deceased. He thus acquires jurisdiction of the subject matter. Notice is then required to be given for persons interested to shew cause against granting the order for the sale of the real estate. After hearing the proofs and allegations of the executors or administrators and other persons interested in the estate, the surrogate is to examine into and determine the question whether there is personal property sufficient to pay the debts or not; and if he finds there is not enough for that purpose, he orders a sale. In deciding upon the sufficiency of the assets, he acts judicially, and an error in this matter does not affect his jurisdiction. It would no more invalidate Ms subsequent proceedings than a mistake as to any other matter submitted to his examination and decision. He has not only authority, but it is Ms duty to settle that question. If he errs, Ms determination may be reviewed and reversed on an appeal; his proceedings are not void, but voidable only. (3 Cowen, 206.)

It was not made a question but that the surrogate of Jefferson county was the proper officer to entertain the application, and to make the order for the sale in case a sale was proper; but it was contended that all the admimstrators should have joined in the application. When there are several executors, the acts of any one are deemed inlaw to be the acts of all. (2 Ves. sen. 267. Toller, 324). A distinction in this respect between executors and administrators is found in some books. Gomyn does not notice it, and I believe if it ever was established, it is now exploded. It was demed in the case of Jacomb v. Harwood, (2 Ves. sen. 265;) and this court has passed on that question, and said that executors and administrators stand on the same ground, and their powers and responsibilities in respect to each other are the same. (Douglass v. Satterlee, 11 Johns. R. 16. Murray v. Blatchford, 1 Wendell, 583.) If these cases were *442not sufficient to authorize us to disregard. the supposed diU ference, it would, I apprehend, be very difficult to sustain it By any thing like substantial, reasons. The nature of their' °fficesi certainly so far as the personal estate is concerned', is so much alike that it affords no occasion to apply to the- one, in deciding upon their acts, a rule which is inapplicable to the other.

The phraseology of the section directing' the proceedings' when the real estate is to be sold, would justify an application by one administrator, if the general rule was that where there are several they' must act conjointly. It is, that “ when any executor or administrator, &c. shall discover or suspect” a deficiency in the personal estate of his testator or intestate to pay the debts, &c: Tie may make the application in the manner' therein provided! Upon general principles, and by the construction of the statute, I am' satisfied that' a single administrator, when he has an associate, has the right to call in the aid of the surrogate of the r roper county to sell real estate, to supply the deficiency in the personal estate, to pay the debts of the intestate.

Some minor questions _ are raised in this case, upon which We ought to express opr views. It is certain that an unreasonable length of time elapsed between the granting of the letters of administration and the period when the proceedings were instituted for the sale of the real property. This might have been, and, without some explanation, should have been a reason for the surrogate to- reject the application; The laws fixes no definite limits within which the proceedings must be commenced; we cannot therefore say that they are void. The time is- left to the discretion of the officer, and" his error, if any, in relation to it, can be corrected only on appeal. ,

The judge erred, it is said, in receiving an exemplified copy of the letters of administration without evidence or suggestion of the loss of the original.' Where the judgment, decree or proceeding of a court of record is to be proved", it may be done by producing the original or a copy duly authenticated. (Starkie’s Ev. pt. 2, 151.) This is the general rule- I cannot find that_ there- is, nor do I know why *443there should be an exception to it in relation to the records of surrogates’ courts. The letters of administration granted to M’Kee and Doolittle were recorded, (perhaps I might say, were copies of the record.) Lord Ellenborough, in the case of Alden v. Keddell, (8 East, 187,) said that the letters of administration were only a copy of the original minutes of the court. In that case the book of acts directing letters to be issued, was received as evidence that letters had been granted. I think the judge decided correctly in receiving the exemplification of the letters of administration in this case.

The want of notice to quit did not, in my opinion, form an objection to the plaintiff’s recovery. The question of notice can never arise where the relation of landlord and tenant does not exist. The defendant was not in possession as tenant of the lessor. He did not enter by his permission or with his acquiescence; nor did he enter under any person from whom the lessor claimed title. The lessor’s title did not come from the heirs, but from the ancestor, and. overreached the title of the heirs. The statutes declares that the sale, by order of the surrogate, conveys a title to the purchaser valid and effectual against the heirs and devisees, and all claiming from or under them. There is no pretence for saying that the relation of landlord and tenant exists, or ever did exist, between the lessor or those from whom he claims and the defendant, or those under whom he held; and therefore no notice to quit could be required.

Motion for new trial denied.