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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
When the Court of Chancery of the state of New Jersey appointed Mr. Pennington trustee for said infants in the place of their deceased father "to execute the trusts mentioned and declared" in their mother's will, it adjudged that a trust was created by that will, for that question had to be decided in order to determine whether a trustee should be
appointed. (Caujolle v. Ferrie, 13 Wall. 465, 472.) It was the foundation upon which the decision to appoint a trustee necessarily rested. If that court had jurisdiction to make the determination it is binding upon us, even if we are of the opinion that, in fact, no trust was created, but simply a power, because the Federal Constitution provides that "full faith and credit shall be given in each state to the * * * judicial proceedings of every other state," and that Congress may by general laws prescribe the method of proving such proceedings and the effect thereof. (U.S. Cons. art. IV, § 1.) Pursuant to this authority, Congress has enacted that judicial proceedings in another state shall have the same effect in every court within the United States as they have by law or usage in the courts of the state in which they were taken. (U.S.R.S. p. 170, § 905.)
A judgment rendered by the courts of another state, however, is always open to impeachment for the want of jurisdiction either over the subject-matter or the parties. Jurisdiction over the subject-matter of an action or judicial proceeding, as was held in Hunt v. Hunt (72 N.Y. 217), is the power to adjudge, concerning the general question involved therein, and is not dependent upon the state of facts which may appear in a particular case, or to the ultimate existence of a good cause of action. The subject-matter of the proceeding in question before the Chancellor of New Jersey was the existence of a trust and the appointment of a trustee thereunder. Whether a trust was created by the will of the testatrix, who not only resided in the state of New Jersey at the time of her death, but her children lived there, and her will was executed and proved, and her estate settled there, was clearly a question that the Chancellor had the power to decide, and if he erred in his decision the remedy was by appeal, or by a motion before that judge to vacate his own order. The latter remedy appears to have been recently resorted to by the plaintiff, but her petition, as testamentary guardian of said infants, addressed to the Chancellor, was dismissed by him with costs, upon the ground, as stated in a certified copy of the order presented
upon this appeal, that a trust was created by the will of Mrs. Smith, and that the trustee previously appointed was a suitable and proper person for the position.
It is insisted, however, that this determination may be reversed upon the appeal that is said to have been taken therefrom, and that hence it is our duty to decide whether the Court of Chancery, as represented by the Chancellor, had jurisdiction of the persons of the infants when the former order was made. Jurisdiction in this regard is challenged, not upon the ground that no notice was served upon them personally, but because, as it is alleged, no notice was served upon the person with whom they resided. It has been held, however, by this court, that "in a proceeding simply for the appointment of a trustee to execute trust duties and powers, for the faithful performance of which security is always required, it is a matter of discretion with the court as to whom notice shall be given. The court in which the application is made may determine and direct in that regard; the appointment being always open to review on the application of any party interested, and who may not have been informed of the proceeding." (Matter of Robinson, 37 N.Y. 261,264.) But, as the existence of a trust was not conceded, let us assume not only that notice to the beneficiaries was essential to jurisdiction, but also that such notice should have been served upon the plaintiff, as the person with whom the infants lived, while both she and they were within the state of New Jersey. Upon this assumption, as the record before us is silent upon the subject, resort must be had to presumptions. The plaintiff in her complaint simply alleges, upon information and belief, that Mr. Pennington, although claiming to be trustee, is not such and has no interest in the securities or income. The defendants allege that he is trustee, and attach to their respective answers a copy of the will and of the order of appointment, which, together with the petition of the next friend and the affidavits and letters of relatives accompanying, were all the evidence relating to the subject introduced upon the trial, except the certificate of the clerk that the
trustee had given the bonds required by the order. There is nothing to show that these papers constitute the entire record upon which the Chancellor acted, or what notice, or that no notice was given to the beneficiaries, or to any person for them. No offer was made by either party to show notice or the want of notice, and the plaintiff did not object to the petition or order upon the ground that notice was not given or that it did not appear whether notice was given or not. The only recital in the order is as follows, viz.: "Upon reading and filing the petition in this case, and upon hearing the statements of counsel, it is ordered," c. Thus we have an order, made by a court of general jurisdiction, with proof of some papers upon which it was founded, but with no proof that they were the only papers, and nothing, either of record or otherwise, to show that every step essential to jurisdiction was not duly taken. Under these circumstances, the presumption is that a court of general jurisdiction proceeded to judgment only after duly acquiring jurisdiction by the service of all notices actually necessary. (Yates v. Lansing, 9 Johns. 396, 437; Shumway v.Stillman, 4 Cow. 292, 296; S.C., 6 Wend. 447; Foot v.Stevens, 17 Wend. 488; Pacific Pneumatic Gas Co. v.Wheelock, 80 N.Y. 278; 2 Black on Judgments, § 835.) As was said by the late Court of Errors in Yates v. Lansing
(supra), "An inferior court shall, when questioned, show that it acted within its jurisdiction. Whereas in courts of general jurisdiction, jurisdiction is presumed until the contrary is shown." (p. 437.) The same rule is stated in an early English case in these words: "The rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged." (Peacock v. Bell, 1 Saund. 73, 75.) The Supreme Court of the United States, speaking upon the same subject in an important case, said: "A superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly.
All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears; and this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties also. * * * But the presumptions which the law implies in support of the judgments of superior courts of general jurisdiction only arise with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged in to supply the absence of evidence, or averments, respecting the facts presented. They have no place for consideration when the evidence is disclosed or the averment is made." (Galpin v. Page, 18 Wall. 350, 365.) When the record of a court of general jurisdiction discloses nothing in regard to the service of process or notice, and no evidence is given upon the subject, jurisdiction over the person will be presumed, because the record itself imports sufficient proof of jurisdiction without disclosing the different steps by which such jurisdiction was acquired. When it affirmatively appears, however, that any essential step was omitted, the presumption in favor of jurisdiction is destroyed and a presumption against jurisdiction at once arises. Within these rules, which are old and familiar, as there is nothing in the record, or elsewhere, so far as appears, to show that the Court of Chancery did not have jurisdiction of the person, and, as we have seen, it clearly had jurisdiction of the subject matter, effect must be given to the usual presumption that obtains in such cases by affirming the judgment appealed from.
The plaintiff has shown great zeal and persistence in her efforts to obtain control of the securities in question, as appears by many reported cases which record continuous failure on her part. (Pennington v. Smith, 69 Fed. Rep. 188; 75 Fed. Rep. 157; 78 Fed. Rep. 399; Smith v. Central Trust Co.,7 App. Div. 278; Smith v. Pennington, 12 App. Div. 378.) Under these circumstances we think that the costs of this appeal should be paid by her personally.
All concur.
Judgment affirmed.