
    WIGAND v. DEJONGE.
    
      N. Y. Supreme Court, Second Department; Special Term,
    
    
      December, 1879.
    Disqualification of Surrogate.—Duties upon Accounting by Executors, &c.—Jurisdiction.
    Where a surrogate, before his election, had given general legal advice to an executor as to his rights and duties as such, and performed other legal services for him, and appeared as his attorney of record in foreclosure suits brought by him as such, and, after his election, assumed jurisdiction as surrogate over the executor and settled the accounts, embracing payments to himself for such services performed as attorney, and, after exercising such jurisdiction, continued to act as attorney of record in litigations brought by the executor in adjoining counties,—
    
      Held, 1. That the surrogate had acted as attorney and counselor in the same matter in which he acted as surrogate, and that he was interested in the subject-matter of the account, within the meaning of the statute (L. 1847, c. 280, § 81, same stat. 3 B. S. 6 ed. 437, § 8).
    
    2. That he never had acquired jurisdiction over the executor, and that all his decrees were void.
    3. The act of passing the accounts of an executor is a judicial act on tire part of the surrogate, even when no objections are made to the account, and in doing so the surrogate exercises that power over trusts formerly exercised by the old court of chancery; and where infants are interested in the accounts, he is bound to investigate and take charge of their interests as their ultimate guardian.
    4. The cause ” which comes before a surrogate upon an accounting is the propriety or impropriety of the trustee’s acts.
    5. An omission of the special guardian to object to the surrogate’s jurisdiction does not preclude the infants.
    G. The plenary jurisdiction of the supreme court over trustees may be invoked by an executor where the surrogate is disqualified; and the supreme court has power to set aside the decrees of a surrogate for want of jurisdiction.
    The action was brought by Cecilia Louise Wigand, Francis William Wigand and Albert August Wigand, three infants, by Edward S. Hubbe, their guardian ad litem, against Louis Dejonge and Augusta Mertens, the executor and executrix of, and trustees under the last will and testament of Francis Wigand, deceased, the father of the infant plaintiffs. The testator had died in July, 1873, leaving a will which was duly admitted to probate by Judge Metcalfe, the then surrogate of Eichmond county, where all parties to this action reside ; defendant, Louis Dejonge and Augusta Mertens (then Augusta Wigand), testator’s widow, duly qualified as executor and executrix. After entering upon the execution of his said trust, defendant employed the legal services of Tompkins Westervelt or of the law firm of Westervelt & Greenfield of the city of New York, which was composed of Tompkins Westervelt and George J. Greenfield, to advise him in respect to his duties and responsibilities as executor, and to search the titles of different pieces of real property upon which he intended to make loans on bond and mortgage with the funds of the trust estate, &c.; a written legal opinion, in regard to his duties and rights as executor, was prepared and given to defendant Dejonge, by Mr. Westervelt individually. Such services were rendered, and bills were rendered for them by the said attorneys to defendant, who paid them in checks drawn by him upon the trust fund in bank. A portion of the principal of the estate was also paid by defendant to his said attorneys, to be by them paid over to the respective mortgagors.
    At the end of the year 1875, Judge Metcalfe’s term of office expired, and Mr. Tompkins Westervelt was elected county judge and surrogate of Eichmond county.
    - A short time after the commencement of Mr. Westervelt’s term of office as surrogate, defendant Dejonge commenced an action in the city and county of New York, to foreclose one of the mortgages held by him as executor herein ; his attorneys therein were Westervelt & Greenfield. While this action was pending," viz., on May 29, 1876, the defendants, by the said George J. Greenfield, their proctor, petitioned Mr. Westervelt, then sitting as surrogate of Richmond county, to be allowed to make a final accounting, and he thereupon issued citations to the parties interested, —viz., the executrix, and the three infant plaintiffs herein—returnable before himself as surrogate ; on the return-day he appointed William D. Putnam, the surrogate’s clerk, special guardian of the infants, and on June 26 he made and entered a decree passing and settling the account as presented. That account was the first one ever made by defendants, and it embraces, therefore, all the before-mentioned payments to Mr. Westervelt, or to Westervelt & Greenfield, and their receipted bills were filed upon this accounting as vouchers for proper credits of defendants. The total amount of personal property that had come into defendant’s possession was stated in this account to be $223,790.91.
    In November, 1876, six other foreclosure suits were instituted by defendants, as executors of said estate, in the supreme court for Kings county, in all of which Mr. Westervelt was attorney for the plaintiffs therein (the defendants herein), and in July, 1877, he entered six judgments for deficiencies in favor of the executors.
    On August 16, 1877, Augusta Wigand, the co-defendant, remarried; the will provided that in such an event the whole of the personalty should be divided as follows : one-third part to the widow absolutely, and the remaining two-third parts between the three infant plaintiffs, in equal shares, to be detained by the defendants in trust for each of them respectively, during their minority.
    On December 20, 1877, defendants, again by Mr. Greenfield, their proctor, presented a petition for a partial distribution to Mr. Westervelt, then sitting as surrogate, who issued citations as before, returnable before himself, and on the return-day again appointed his said clerk special guardian of the infant plaintiffs ; and op January 31, 1878, as surrogate, he made a decree directing the defendants, among other things, to distribute a part only of said estate, viz., the sum of $150,073.91, between testator’s widow and children, and to retain the balance of testator’s personal estate, stated to be the sum of $73,717, for future distribution.
    On March 8, 1879, this action was commenced, the complaint alleging various grounds for objecting to items in the account as improper, but it is unnecessary to notice these here in detail further than to say the relief sought was that the before-mentioned distribution proceedings be set aside, that defendant make a new account, make good the losses sustained, and be removed from his trust. The executrix was made a co-defendant, but no claim was made against her individually.
    The answer of defendant Dejonge denied all improper conduct. Also pleaded the proceedings before Surrogate Westervelt as a bar, and demanded that, if a new accounting be had and he be adj ndged liable for any of the alleged losses, then the co-defendant Augusta Mertens be held equally responsible with him.
    Defendant, Augusta Mertens, in her separate answer, alleged that she never had any actual control over the management of the estate, but left everything to defendant Dejonge, her brother-in-law ; that, relying upon his statements, she gave her apparent consent and joined in the proceedings, believing them to be properly conducted; but that she had now learned that his representations in respect to certain investments were false, and she therefore demanded that the
    
      proceedings before the surrogate be set aside,, and that defendant Dejonge be adjudged to make good her losses.
    Upon the hearing it was agreed that the trial should be limited to the question, whether this court had jurisdiction over the matters involved herein, and whether the said surrogate had had jurisdiction over the executors upon the occasions referred to.
    
      Edward S. Ilubbe, guardian ad litem, in person.
    Mr. Westervelt never had jurisdiction as surrogate ; he had been attorney and counsel, for defendant, in the matters of this estate, and, indeed, was so at the identical moment of time when he assumed to settle as surrogate the account of 1876 ; he was also interested in the subject-matter of the account, and could not pass upon the propriety of payments to himself ; this case falls clearly within the prohibition of the statute (3 B. S. 6 ed. p. 437, § 8). This statute is only declaratory of the common law, and of the sense of natural justice inherent in the universal feeling of all mankind. “The settlement of an estate under the authority of a judge interested in it, would be as inconsistent with the principles of natural justice as it is repugnant to the positive enactments of the legislature (David Cottle, appellant, 5 Pide. 482). The disqualify ■ cation is absolute (Oakley v. Aspinwall, 3 N. Y. 547). It is not necessary to show actual fraud on the part of a disqualified judge, but bias and partiality are conclusively presumed under the circumstances (People ex rel. Roe v. Suffolk Common Pleas, 18 Wend. 550; Carrington v. Andrews, 12 Abb. Pr. 348). Mr. Westervelt was a mere trespasser, and his decrees were void ab initio; the fact that he has jurisdiction as surrogate in other cases does not help him (Chambers v. Clearwater, 1 Abb. Ct. App. Dec. 341; affi’g S. C., 41 Barb. 200 ; see also Edwards v. Russell, 21 Wend. 64; Low v. Rice, 8 Johns. 409; Clayton n. Per Dun, 13 
      Johns. 218; Foot v. Morgan, 1 Hill, 654; Calvin v. Luther, 9 Cow. 61; Striker v. Mott, 6 Wend. 465). But if this court shall hold that there was jurisdiction, then plaintiff’s guardian asks leave to amend so as to allege fraud and collusion ; plaintiff’s guardian has abstained from alleging actual collusion, and taken the mere technical ground of want of jurisdiction, because his main object—in this case—is to get with as little delay as possible a proper determination of the question of defendant’s liability for losses, without adding embarrassing elements foreign to the main issue. Assuming for the surrogate that he had jurisdiction in 1876, he certainly had lost it in 1878, by reason of his having acted as attorney in 1877, not because he thereby violated the statute that “no surrogate shall be attorney for or against an executor, &c., over whom he may have jurisdiction by law” (3 R. S. 6 ed. р. 330, § 28), but because he thereby brought himself within the prohibitory statute that “no judge shall have a voice in the decision of any cause in which he has been an attorney, &c., &c.” (3 R. S. 6 ed. p. 437, § 8), It cannot be claimed that there was a case of necessity (compare Matter of Ryers, 72 N. Y. 2,15). The statute is very clear in providing that the county judge, and in ease of his disqualification, the district attorney, shall act as surrogate (1 It. 8. 6 ed. p. 392, § 25 ; 3 Id. p. 86, § 78. And see In re Hathaway, 71 N. Y. 238; Holmes v. Smith, 3 Hun, 413; S. C., 6 Sup'm Ct. 57). And in order to still more effectually prevent an estate from being distributed under the authority of an interested surrogate, the Legislature has provided that such surrogate shall certify the case to the surrogate of an adjoining county, if there is no one in the county qualified to act in his place (L. 1877, с. 285, p. 310). And this law was.in force at the time of the decree of partial distribution. The form of this action is correct; the judgment of any court can always be impeached collaterally for fraud or for want of jurisdiction (Duchess of Kingston’s Case, 20 How. St. Tr. 538; Chambers v. Clearwater, supra, 312, 313; Foot Morgan, supra ; Calvin v. Luther, supra). But this is not a collateral attack, it is a direct proceeding for the purpose of having the surrogate’s decrees set aside. An application in the surrogate’s court to Mr. Westervelt himself, would clearly be improper, since he cannot now be called upon to sit in judgment over his own previous acts, and besides, neither he as surrogate, nor the district attorney acting as surrogate has power to try the issue here presented, viz.: whether the surrogate, in 1876 and 1878, had acted within the limits of his jurisdiction; there is no statute conferring such authority upon the surrogates court. A surrogate cannot, generally speaking, review his own decision on an alleged error of law (Brick’s Estate, 15 Abb. Pr. 12, 36; Yale v. Baker, 5 S. C. 12). The cases which hold that he had such power are exceptions, and the object in each one of them was to correct a manifest mistake (Decker v. El wood, 3 Sup'm CL 48; Pew v. Hastings, 1 Barb. Ch. 452; Sipperly v. Baucus, 24 N. Y. 49; Campbell v. Thatcher, 54 Barb. 382). And in all these cases it was, of course, conceded that the surrogate had had jurisdiction when he committed the error; for the same reason not one of the cases cited by defendant Dejonge in this connection, is in point. The unlimited jurisdiction of the supreme court over all cases of law and equity cannot be questioned ; it follows not only that this court has jurisdiction, but that it is the only tribunal with sufficient power to give these infant plaintiffs the full relief to which they are entitled.
    
      Aaron J. Vanderpoel, of counsel, for defendant, Louis Dejonge (George J. Greenfield, attorney).
    The statute (3 R. S. p. 437, § 8), does not apply ; it is not pretended that Judge Westervelt was counsel for defendants in any of the proceedings on the accounting itself; his acting as counsel for them in other matters having no relation to the accounting did not disqualify him ; but if a broader construction be given to the statute, he would still not be disqualified, because he had given no advice as to any matter upon which passed at the accounting; no question was raised as to the titles of mortgages, nor any other matter as to which he had advised. Nor was he interested in the result of the accounting. He had been paid for his services by the executor and had no claim against the estate. If the payments to him were unjust, improper or excessive, the executor could not require him to repay them or recover the money back. Besides, no objection was raised to the payments by the special guardian, and the surrogate was, therefore, not called upon to decide the question. It is only when an item is illegal on its face, or when objections are filed, that the surrogate must examine into and disallow the charge if improper (Dayton Surr. 2 ed. 474, and cases cited there; Boughton v. Flint, 74 N. Y. 485). The fact that the surrogate acted as attorney for the executor in 1876 and 1877, did not deprive him of his jurisdiction in 1878. It would probably be a misdemeanor for him to willfully disobey the statute, but this would have no bearing on his disqualification as surrogate (David Cottle, appellant, 5 Pick. 482, also Coffin v. Cottle, 9 Id. 289). But Judge Westervelt did not violate the statute, which must be strictly construed. The statute applies only to executors ; when defendant brought the foreclosure suits, he did so as trustee under the will, not as executor. At common law there was no disqualification of a judge, by reason of having been counsel in the case. This is solely a statutory matter-; and while interest in the subject-matter or consanguinity to the party worked a disqualification at common law, it does even then not divest the judge of jurisdiction, but it is a mere error or irregularity, to be corrected by a vacation or reversal of his judgment, but not by a collateral attack (Dimes v. Grand Junction Canal Co., 16 E. L. & Eq. 63; also, 3 H. L. C. 759; Foot v. Stiles, 57 N. Y. 408; Gorrill v. Whittier, 3 N. H. 268). The prohibitory statute has been held in this State to apply only to causes in court, and to judges sitting in court (People v, Wheeler, 21 N. Y. 82, 84, 87; Lynch v. Livingston, 2 Seld. 433; People v. Clark, 21 Barb. 216; Foot v. Stiles, 59 N. Y. 405). The decree of a surrogate on an accounting of trustees, by force of the statute, has the like effect as the judgment of any court of competent jurisdiction (3 R. S. 6 ed. pp. 102,103, § 80). A direct proceeding to set aside the decree of any court can only be had in the court in which the judgment was obtained, except for actual fraud. N o actual fraud has been charged. Ip matters coming within the cognizance and jurisdiction of the surrogate, his decrees are conclusive and cannot be impeached in any other court, but can be reviewed only on appeal (Atkins v. Kinnan, 20 Wend. 241; Jackson v. Crawford, 12 Id. 533; Jackson v. Robinson, 4 Id. 436; Vanderpoel v. Van Valckenburgh, 2 Seld. 190; Farrington . King, 1 Bradf. 182; Dutton v. Dutton, 8 How. Pr. 99; Bloom v. Burdick, 1 Hill, 130; Lawrence v. Parsons, 27 How. Pr. 26; Hartnett v. Wandell, 16 Abb. Pr. N. S. 303; Rignez v. Cole, 6 Bosw. 479), even if there has been a palpable disregard of the directions of the statute (Vanderpoel v. Van Valckenburgh, supra), and even though the alleged facts conferring jurisdiction do not in fact exist (Dutton v. Dutton, supra. And see Roderigas v. East River Savings Bank, 63 N. Y. 460). The surrogate’s court has undoubtedly the right to open its decrees for good cause and correct the errors, if any (Bailey v. Hilton, 6 Weekly Dig. 254, and cases cited). The decrees of a surrogate are as conclusive against infants, if properly represented by special guardian, as against adults. (Brick’s Estate, 15 Abb. Pr. 43; Redf. Surr. 407).
    
      Thomas H. Hubbard, of counsel, for defendant, Mrs. Mertens (Butler, Stillman & Hubbard, attorneys).
    If Mr. Westervelt had no jurisdiction, his acts do not limit the action of this court in this case; if he had jurisdiction, his acts may limit the inquiry in this cause, but are not a bar to this action. If he had jurisdiction his decisions cannot be conclusive as to questions that have not been before him. A surrogate’s decree upon a final accounting of executors settles only: 1. That the charges made for money paid to creditor’s legatees, next of kin, and for necessary expenses, are correct. 2. That the executor has been charged all the interest for moneys received by him, &c. 3. That the moneys stated as collected were all that were collectible, &c. ; and, 4. That the allowances and charges for decrease and increase in the value of any assets were correctly made (2 R. S. 94, § 65 ; 3 Id. 6 ed. 102). The questions of the executors’ liability for money which they have not paid out, and for the proper investment thereof, would still remain. It is claimed by defendant Dejonge that the surrogate made a valid decree upon the partial distribution; but the decree only assumes to determine : 1. That the executors should divide certain portions of the estate. 2. That they should retain, as trustees, the portions thus set apart for the children. 3. That they should retain, as executors, undivided and for future distribution, the residue of the estate ; and, 4. That they make a specified disposition of the income arising from the portions set apart for the children. If, therefore, the surrogate had jurisdiction of both proceedings taken before him, there would still remain to be passed upon the questions : 1. Whether the part of the estate not heretofore divided should be divided now. 2. Whether the trustees, or either of them, are personally liable if the part not divided has disappeared and cannot be divided. 3. Whether the trust has been properly administered since the last surrogate’s decree, and improper payments been made, as alleged in the complaint; and, 4. Whether defendant Dejonge should be removed from his trust. These are questions that relate to the correct administration of the trust, and this court has jurisdiction to determine them (Chipman v. Montgomery, 63 N. Y. 221, 230; Haddow v. Lundy, 59 Id. 320). In foreclosing the mortgages Mr. Dejonge acted as executor, and not as trustee; his duties as trustee under the will did not commence until the remarriage of the widow and the distribution of the estate ; the mortgages were foreclosed before that event. In conducting those proceedings as his counsel, Mr. Westervelt was, therefore, counsel for an executor and not for a testamentary trustee. But whether Dejonge was executor or trustee, and whether Mr. Westervelt was his counsel in the one or the other capacity, does not affect the question whether he violated the statute which declares that “ No judge of any court shall have a -voice in the decision of any cause in which he has been counsel, attorney or solicitor, or in the. subject-matter of which he is interested”(3 R. S. 6 ed. 437, § 8).
    The views presented by the guardian ad litem, in' which we concur, and the authorities cited by him show conclusively that the surrogate had no jurisdiction, that his acts were void, and do not limit the inquiries of this court in this action.
    
      
       See Code Civ. Pro. § 46; Darling v. Pierce, 15 Hun, 542; Matter of Ryers, 72 N. Y. 1; Matter of Manufacturing Co., 77 Id. 101.
    
    
      
       Before answering, defendant Dejonge moved for a bill of particulars; his motion, was granted at special term, but the order was subsequently reversed by the general term, reported in 18 Hun, 405.
    
   Pratt, J.

The surrogate became county judge in January, 1876, under his election ; he had been serving as an appointee for some weeks previous.

It is beyond dispute that he had been advising the executor and trustee for some time before he became judge, so that the bills for his services formed a part of the executor’s accounts. It is equally clear that he acted as attorney and counsel in several foreclosure proceedings after he became county judge, and that the vouchers for his services subsequently came before him on the accounting. I do not think this is permitted under a fair interpretation of the statutes. “Ho surrogate shall be counsel, &c., for or against any executor . . . over whom or whose accounts he could have, any jurisdiction by law” (R. S. tit. 1, pt. III. c. 11). “Ho judge of any court shall have a voice in the decision of any cause in which he has been counsel, attorney, &c., in the subject-matter of which he is interested” {L. 1871, c. 859).

Was the judge interested within the meaning of the statute ?

Take, for example, the case of an attorney who had acted for an executor, and charged, and received, grossly exorbitant fees for his services, and having been elected judge should attempt to pass the accounts. As between the judge and the executor, the payment having been voluntary, no question could be raised; but suppose the beneficiaries of the trust object. ■ Would he not be compelled to pass judicially upon the reasonableness of his own charges ?

But it is claimed that such a question did not arise ; the moment the account was presented the objection was manifest.

Having issued a citation, the next step was to appoint a special guardian for the infants, who would or might be interested in objecting to the items before referred to. Whether the guardian objected or not,, the act of 'passing the accounts was judicial. It was the exercise of that power over trusts formerly exercised by the old court of chancery, and the court was bound to investigate and take charge of the infants’ interest as their ultimate guardian.

The next question is whether the surrogate had been engaged in any cause, &c., within the meaning of the statute. Manifestly he had.

The cause .which comes before the surrogate on the accounting is the propriety or impropriety of each and every act of the trustee.

The trustee attempts to render an account of his acts, the purpose of which is to bind the estate by the record to be made.

To say that he may select from the account certain items and limit the surrogate’s disqualification to such items as he has advised upon, would defeat the object of the statute when applied to surrogates’ courts.

The ground of failure of justice cannot be successfully argued to sustain the surrogate’s decrees. He was not the only officer before whom this accounting might have been had. Where the surrogate and county judge are disqualified the district attorney may act, or the plenary jurisdiction of the supreme court over such trusts as existed in this matter can be invoked to give the necessary relief.

Upon the case as it now stands, I am constrained to hold that the surrogate was interested in the matter upon which his decrees were passed, and that he had acted as counsel in the same matter within the meaning of the statute.

If these views are correct it follows,- that the decrees were void.

Judgment accordingly. 
      
       An interlocutory judgment was thereupon entered, setting aside and declaring void all the before-mentioned proceedings before Mr. Westervelt as surrogate, and ordering a reference to take an account of all proceedings of the executors from the beginning of their trust, and also to take testimony in regard to all the issues raised by the pleadings and not yet disposed of. •
     