159 N.E. 710 | NY | 1928
Letters of administration on the estate of Bridget Ditton, deceased, were issued to defendant Tuite by the Surrogate's Court of Richmond county on June 27, 1900. Defendant American Surety Company became the surety on his administrator's bond which was in the penal sum of $20,000.
In April, 1904, the surety company instituted proceedings under section 812 of the Code of Civil Procedure, then in force, to be relieved from further liability as *28
surety for Tuite as such administrator. On April 27, 1904, the surrogate made an order directing Tuite to file a new bond within five days. Tuite did not file the bond. The Code section provided: "If the principal fail so to file such new bond within the time specified, a decree or order must be made revoking the appointment of such principal or removing him and requiring him to * * * account and file such account within twenty days." No such order was made. Although prepared and presented to the surrogate, it was never signed. This court has held (Matter ofThurber,
The Appellate Division reversed upon the law and dismissed the complaint. The basic reason for dismissing the complaint was that the appointment of plaintiff as administrator de bonis non and the granting of letters to her are void, the record showing that the prior administrator is living and that his letters have never been revoked.
Indubitably, the removal proceedings instituted by the surety company in 1904 never went further than the order requiring Tuite to file a new bond. Although he was in default under that order, his letters were not revoked. The Surrogate's Court has jurisdiction to revoke letters of administration and jurisdiction to appoint a successor in place of a person whose letters have been revoked. (Surrogate's Court Act, § 40, subd. 2; § 136.) It has jurisdiction in any proceeding before it of parties who have been cited. (Surrogate's Court Act, § 41, subd. 2.) It obtains jurisdiction to make a decree by the existence of the jurisdictional facts prescribed by statute. (Surrogate's Court Act, § 42.)
Section 43 of the Surrogate's Court Act provides:
"Where the jurisdiction of a Surrogate's Court to make a decree or other determination is drawn in question *30 collaterally, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Surrogate's Court."
Section 80 thereof provides:
"Every decree of a Surrogate's Court is conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained."
The question presents itself whether the letters issued to plaintiff are subject to collateral attack. A vacancy is a jurisdictional fact. If there is no vacancy, obviously there is no jurisdiction of the subject-matter. The point is whether defendants can resort to the records of the Surrogate's Court to establish the fact that no vacancy existed when plaintiff was appointed or whether they are bound by the allegation of jurisdictional facts in the petition and the determination of the court thereon. The conclusiveness of the decrees of a Surrogate's Court has been sweepingly upheld in many cases. It has been said in the broadest terms: "Where general jurisdiction is given to a court over any subject, and that jurisdiction depends, in a particular case, upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence its decision upon the question of its jurisdiction is conclusive until reversed, revoked or vacated." (O'Connor v. Huggins,
As to the contention that the defendants are in pari delicto with plaintiff in suppressing the facts before the Surrogate's Court and should, therefore, be required to resort to direct attack on the letters, it can only be said that the Surrogate's Court had no jurisdiction over the subject-matter — the appointment of an administrator de bonis non. Its letters were, therefore, void in the strictest sense, not merely void as against strangers to the proceeding. Tuite remains the administrator of the estate and may assert his rights as such.
The Statute of Limitations has clearly run against plaintiff individually. There must be an accounting *32
before there is a liability (Matter of Rogers,
The judgment should be affirmed, with costs.
CARDOZO, Ch. J., CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; ANDREWS, J., dissents.
Judgment affirmed, etc.