12 Wend. 533
N.Y. Sup. Ct.
1834

By the Court,

Sutherland, J.

The case of Jackson, ex dem. Jenkins v. Robinson, 4 Wendell, 436, wаs very similar to this. The plaintiff in that case claimed under a sale made by virtue of a surrogate’s order. He proved the letters of administration and thе application, on the part of the surviving administrator, to the surrogate, setting forth the deficiency of personal assets, and requesting the aid of the surrogate. The several orders of the surrogate, made in pursuance of such application, were also proved. The defendаnt objected to the sufficiency of the evidence to entitle ‍‌​‌​​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​​​‌‌​‌​‌​​​​‌​​​​‌​‌‌‌‍the рlaintiff to recover, on the ground, among others, that it had no.t been shown, оtherwise than by the recitals in the orders themselves, that there were any debts due from the estate, or that there was a deficiency of assets tо pay the same, or that the personal property had been applied to the payment of debts, and consequently that.enough had not been shown to give the surrogate jurisdiction ; and upon this objection being overruled, he offered to prove affirmatively that it did not appear from the inventory and other papers presented by the administrator to the surrogate, on his аpplication ‍‌​‌​​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​​​‌‌​‌​‌​​​​‌​​​​‌​‌‌‌‍for an order of sale, that any debts remained due from the estate of the intestate, and that it did appear that a lar ge amount of the property of the estate'remained undisposed of. This evidence was excluded by the judge, and upon an application for a new trial, wе held that his decisions were correct; that the petition ‍‌​‌​​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​​​‌‌​‌​‌​​​​‌​​​​‌​‌‌‌‍of the administrator to the surrogate for the sale of the real estate, accompanied by an account of the personal estate and dеbts of the intestate, was sufficient to confer jurisdiction upon the surrogatе / *537over the subject matters in a proceeding under this act; 1 R. L. 450, § 23 ; that in deciding whether-there is personal property sufficient to pay the debts, he acts judicially ; and if he should decide erroneously in respect to it, or should make a mistake as to any other matter submitted to his examination and decision, it would not affect his jurisdiction; that the proceedings would not on thаt account be void, but voidable only; that they could not be impeaсhed for any irregularity before ‍‌​‌​​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​​​‌‌​‌​‌​​​​‌​​​​‌​‌‌‌‍the surrogate in a collateral action, but must be corrected on appeal. 1 R. L. 454, § 32. That decision fully covеrs this case. The defects imputed to the proceedings of the surrogate here, are all subsequent to the presentation of the petitiоn for a sale and the inventories which accompanied it; and if they were admitted to exist, would go to the regularity of the proceedings only, and would not affect the jurisdiction of the surrogate, or the validity of his order of sale. But the parol evidence fully warrants the conclusion that all the proceedings before the surrogate were strictly formal and regular ; and this evidence, I think, was рroperly admitted, under the circumstances of the case. It was satisfactorily shown, by the testimony of the surrogate, that the records and other papers belonging to the surrogate’s office of Steuben when he took possession of it, were in great confusion ; that many of them were not in the office, but were found in the possession of the families of the two prеceding ‍‌​‌​​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​​​‌‌​‌​‌​​​​‌​​​​‌​‌‌‌‍incumbents, and some in the county clerk’s office. This warranted the presumption that many of them had been lost, and justified the admission of the testimоny of the administrator, showing what proceedings did actually take plaсe before the surrogate. The presumption of the entire regularity оf those proceedings is strengthened by the long acquiescence of the heirs at law. On the whole, I think-it is a clear case for the defendants, and that the motion for a new trial ought to be denied.