4 Abb. Ct. App. 391 | NY | 1869
By the Court.
It seems to me necessary to say little more in this case, than that I concur in the opinion, pronounced by Ingraham, J., in the court below, that in the absence of fraud or collusion between the administrator and the creditor, a decree of the surrogate, directing such administrator to pay the debt, is conclusive upon the sureties in the administration bond. By that bond, the latter undertook that the administrator should obey all orders of the surrogate, touching the administration of the estate committed to him.
Within the letter of the bond a breach of the condition has occurred, and the absolute undertaking of the sureties has become operative.
It may be considered, nevertheless, that a disobedience to an order or decree of the surrogate, which he had no jurisdiction to make, would not furnish a ground of recovery. And inasmuch as fraud vitiates judgments and decrees, as well as all other'acts and transactions induced thereby, it follows that a decree of the surrogate, obtained by fraud or collusion, would not conclude such sureties.
But the statute gave the surrogate jurisdiction, upon the application of a creditor, to decree the payment of any debt
The surrogate therefore had jurisdiction; application was made to him, he found that there were assets sufficient, and he decreed the payment.
The statute further provides, that whenever the aaministrator refuses or omits to perform a decree of the surrogate, for the payment of a debt, such- surrogate may cause the bond to be prosecuted, and shall apply the moneys-'collected thereon to the satisfaction of the decree.
The order or decree of the surrogate was therefore within his jurisdiction.
PTo offer or attempt was made-on the trial herein to show fraud or collusion, but only to impeach the judgments in favor of the plaintiff which were mentioned in the decree, and which the administrator was therein ordered to pay, by showing that they were irregular and erroneous, and that the debts for which they were recovered, or some part thereof, had been paid before they were rendered.
This is an attempt at a double impeachment of the record. 1st- To inquire into the merits of the decree of the surrogate. 2nd. To inquire into the merits of a judgment. duly obtained in the suprefue court, which the decree of the surrogate directed the administrator to pay.
The .case of Annett v. Terry, in this court (35 N. Y. 256), shows that this cannot be done, while on the other hand it holds that the decree of the surrogate may be impeached by the sureties for fraud, or collusion in the procurement thereof.
Whether the proceeding further pursued by the creditor, to wit, by filing the decree of the surrogate, and issuing execution against the administrators, and procuring and proving the return thereof, was an essential pre-requisite to the maintenance of this action, is not material to the present inquiry. It was evidence of the default of the administrator at least. If a necessary condition of the liability of the sureties it was satisfied, and if not the sureties were not prejudiced thereby.
The case of Douglass v. Howland 24 Wend. 35, 55; as also, Thomas v. Hubbell, 15 N. Y. 405, may be profitably referred to, to show the distinction between those cases in which (in
These views preclude inquiry into the alleged errors in the judgments which the surrogate ordered paid, and lead to the conclusion that the judgment appealed from should be affirmed.
Murray, J., also read an opinion for affirmance.
All the judges concurred.
Judgment affirmed, with costs.
