
    PEOPLE ex rel. JAMES v. SURROGATE OF PUTNAM.
    
      N. Y. Supreme Court, Second Department ; General Term,
    
    
      May, 1885.
    Prohibition; when writ mat issue.— Surrogates’ Courts; jurisdiction; residence of decedent.
    Under the rule that a writ of prohibition will not be allowed where the inferior court has jurisdiction of the subject matter, or where the relator has an adequate remedy against the erroneous action of the court by appeal; the writ will not be issued to restrain a surrogate from taking proof of a will offered for probate, upon the ground that the decedent was not a resident of the county.
    The surrogate has full power to take proof of wills and admit them to probate, and if he errs in determining the question of residence, his action may be reviewed by appeal, but may not be arrested.*
    Residence means the place where a person lives and has his fixed permanent home and principal establishment; and where a person has two residences at different seasons of the year, that will be deemed his domicil or home which he himself selects or describes as his home, or where he votes or exercises the rights and duties of a citizen.
    * See the following case.
    Appeal from an order denying relator’s motion to make absolute an alternative writ of prohibition issued to the surrogate of Putnam county to restrain him from taking proof of the will of Frederick P. James, deceased.
    The facts are fully stated in the opinion of the court.
    
      E. H. Benn, for the relator, appellant.
    
      Charles E. Whitehead, and Haliburton Fales, for the surrogate, respondent.
   Dykman, J.

The common law provided the writ of prohibition as a remedy for the encroachment and usurpation of jurisdiction by inferior courts, and its legitimate office has ever been to restrain and prohibit such courts from proceeding beyond their proper limits in the exercise of judicial functions. It is an extraordinary remedy, and the writ is only allowed in extreme cases in the sound judicial discretion of the courts (People v. Westbrook, 89 N. Y. 152, 155). It will not be allowed where the inferior court has jurisdiction of the subject matter. In the language of Chief Baron Comyn: “ Where it has cognizance of the principal, it shall determine that which is incident” (Comyn’s Digest, tit. “Prohibition”).

If, in such a case, error intervenes, the remedy is by appeal (People v. Seward, 7 Wend. 518). Although the jurisdiction of the surrogate is limited, his power to take proof of wills and admit them to probate is undeniable, and he is vested with full power over that subject. He has power to act, and if he proceed erroneously his action may be reviewed by appeal, but may not be arrested. “ He may commit an error as to inhabitancy which would be sufficient to reverse his decision, but not sufficient to render it void from the beginning, for the reason that he had power to act upon the subject” (Roderigas v. East River Savings Inst., 76 N. Y. 316, 321). These familiar principles applied to this case remove all difficulties in its disposition.

These are the facts. Mrs. Julia L. James presented a petition to the surrogate of Putnam county for the proof of the last will and testament of her husband Frederick P. James, which contained an allegation that he was a resident of Putnam county at the time of his death. This is assumed in the papers before us, although a copy of the petition is not given.

This relator appeared before the surrogate on the return day of the citation and objected to the proof of the will, on the ground that the decedent at the time of his death was a resident of the city and county of New York, and claimed that the surrogate of Putnam county had no jurisdiction in the premises, and proposed to prove the facts if they were disputed. Thereupon, proof was introduced respecting the residence of the deceased, and after the testimony was closed on that subject, and the counsel had summed up on both sides, and before the surrogate rendered any decision on the subject, an alternative writ of prohibition was sefved on the surrogate commanding him to desist and refrain from taking proof of the will of the deceased until the further direction of the court. The motion to make the prohibition absolute was afterwards argued and denied, and from that order we have this appeal.

Each surrogate must hold within his county a court which has, in addition to other powers conferred 'by law, jurisdiction to take proof of wills and admit them to probate where the decedent was at the time of his death a "resident of that county, whether his death happened there or elsewhere. Mr. James, the decedent, in this case, died at his own house in the city of New York, where he had been living for several months previous to his death (Code Civ. Pro. § 2472, subd. 1. and § 2476, subd. 1). It is to be noticed here that the word resident is substituted for the word inhabitant in the former statute (2 R. S. 73, § 23).

When the petition for the proof of the will of Mr. James, containing an averment of his death and that he was at the time of his decease a resident of Putnam county, was presented to the surrogate of that county, he was in possession of the case and had jurisdiction to proceed therein, and wdien the objection was made that the decedent was not at the time of his death a resident of Putnam county, that raised an issue against the petition which it became necessary to determine. But how was the fact to be ascertained? Not by an abandonment of the case, certainly; but by proceeding to hear the proof and decide the question, which the surrogate was bound to do. It was a special fact on which depended the right of the surrogate to act in this particular case, which it was his duty to ascertain, and then, if his decision was erroneous it could be corrected on appeal, but could not be assailed by collateral proceeding (Bumstead v. Read, 31 Barb. 661; Sheldon v. Wright, 5 N. Y. 497, 511). Preliminary proof of all the facts on which the jurisdiction of a \ surrogate depends is not required (Sheldon v. Wright, supra). The writ of prohibition was not therefore an appropriate remedy in this case, and was very properly denied, for the reasons already stated.

But if the case is to be examined on the merits, the result will be equally conclusive against the writ. The claim of the objector is that the decedent at the time of his death had two residences—one at Cold Spring, in Putman county, where he spent his time in summer, and one in New York City, where he spent his winters. Residence has much the same signification as domicil, and means the place where a person lives and has his fixed permanent home and principal establishment; and where a person has two residences at different seasons of the year, that will be deemed his domicil or home which he himself selects or describes as his home, or where he votes or exercises the rights and duties of a citizen (Burrill Law Dict. title “Domicil”). Residence, combined with intention, constitutes a domicil, and the fact depends much on the intention of the party (2 Kent Com. 431).

Under these rules the facts before ns show that Mr. James, at the time of his death, had his residence and domicil in Putnam county. He so declared in his will, and several deeds which he executed under seal. He declared in conversation that he resided there, and that his home was there, that he vqted there, paid Ms taxes there. He was a special road commissioner for that county, and ran there for the office of member of Assembly. These facts are potent to establish the unequivocal intention of the decedent to make and. continue his home at Cold Spring, .and there is nothing to manifest any change or revolution of such intention.

Another reason for the denial of the writ of jtrohibition in this case is, that the relator had a complete and adequate remedy by appeal from the decision of the surrogate, on which the whole question could be reviewed.

The discretion of the court was well exercised in the denial of the writ, and the order should be affirmed, with costs and disbursements.  