
    Goodrich, Administrator, with the will annexed, of P. Miller, against Pendleton.
    
      August 19th.
    
    The Surrogate of the City and County of IN'ew-Yorlc, has no authority to grant letters of administration with the will annexed, of a person -reoiding out of the state.
    By the acts, (1 JV. R. L. 449. Sess. 36. ch. 79. sec. 17. Sess. 38. ch. 157.) the Surrogate’s powers, in this respect, are limited to the case of a non-resident of the state dying intestate, and leaving goods and chattels in the City of IN'ew-Yorlc.
    
    That the plaintiff who sues as administrator, has not actually taken out letters of administration, or that the letters of administration were not granted by an officer having competent authority to grant them, in the particular case, may be objected to by plea, or in the answer, or by demurrer; and if insisted on at the hearing, the bill will be dismissed. But if letters of administration are duly taken out any time before the hearing, it will be sufficient, and may be charged by way of supplement, or amendment.
    BILL for an account and payment of moneys received by the defendant for and on behalf of the testator.
    It appeared, by the bill, that Ph. Miller, the testator, was an inhabitant of the state of Georgia, and died there, and that his widow, Catharine Miller, was one of the executors of his will, and took upon herself, exclusively, the trust, . , , . . , and acted as an executrix; and the claim in the bill was foun¿e¿ Up0n dealings by the defendant with her in that character. She was an inhabitant of Georgia, and died there, and the defendant was an inhabitant of Dutchess county, in this state. Letters of administration, with the will annexed, were granted to the plaintiff by the Surrogate of the City of New-York. It did not appear either in the pleadings or proofs, what right or title the plaintiff had to take out letters of administration, or that the testator left any goods or chattels in the City of New-York.
    
    The defendant, in his answer, and also at the hearing, insisted, that the plaintiff was not the lawful representative of Ph. Miller, and had no right or title to sue in that character, inasmuch as he showed no authority as administrator from the Court of Probates of this state.
    The cause was argued at the last term, briefly upon this point, and at large upon the merits.
    
      Boyd and Riggs, for the plaintiff.
    The defendant, in proper person, and Hoffman, contra.
    As to the above point, was cited the Statute, 1 N. R. L. 444. sect. 3. 15. 17. and Weston v. Weston, 14 Johns. Rep. 428.
   The Chancellor.

The point that meets us at the very threshold of this case, and which seemed to be very lightly touched at the hearing, has appeared to me, upon examination, to be insurmountable. I cannot discover that the Surrogate of New-York had authority to grant letters of administration in this case, and the plaintiff, therefore, shows no title to appear in the character he has assumti?. lt is Qdt without regret that I have arrived at this conclusion, considering that this cause has been brought to a hearing, at great expense, and discussed fully upon its merits. But though the objection may appear to be quite formal and technical, the defendant has certainly a right to insist that the person who undertakes to call him to an account, should have competent authority to do so, and he is entitled to question the validity of the plaintiff’s commission. Such an objection was allowed in the case of Winn v. Fletcher, (1 Vern. 473.) to be good, by way of plea; and there the defendant pleaded that the plaintiff was not an administrator, as he averred himself to be. In Fell v. Lutwidge, Atk. 120. Barnard Ch. Rep. 319.j the exception was taken, for the first time, at the hearing, that the plaintiff had not taken out letters of administration until long after the bill was filed; and though Lord Hardwicke overruled the exception, it was not because it was too late, but on the ground that procuring letters of administration before the cause was brought to a hearing, was sufficient. Here the objection was put forward distinctly in the answer; and it may as well be made in the answer as by plea. The general rule is, that after a plea has been overruled, the same defence may be insisted on by way of answer. (2 Vesey, 491. 3 P. Wms. 95. Redes dale’s Tr. 244. j And as the objection was taken from the answer, and made a point at the hearing, the counsel for the plaintiff did not attempt to resist it on that ground. They met the objection on its me=fits, by insisting that the Surrogate oiJYew-York had competent power to grant letters of administration, in the given case.

In the note to the case of Cleland v. Cleland, (Prec. in Ch. 63.) it is stated, that the objection that the administrator was not made a party defendant to a suit, was overruled, because the wife was charged as administratrix, and confessed in her answer, that she had possessed and admi-, mstered the personal estate of her deceased husband, though she denied, by answer, that she had taken out letters of administration. The objection was, probably, raised by her at the hearing, and, perhaps, she was thought to be con-c]u(je(j by her acts; and the note adds, also, that she was the person by law entitled to administration. That last circumstance clearly was not sufficient to dispense with the x letters of administration from the proper source. In Humphreys v. Humphreys, (3 P. Wms. 348.) the next of kin entitled to administer, sued, without letters of administration, and a demurrer to the bill for that cause, was allowed. But that case, like the one of Fell v. Lutwidge, might have taught the plaintiff, after the admonition given in the answer, how easily the defect was to be cured. Letters of administration were taken out, in that case, and charged by way of amendment to the bill; and the Lord Chancellor held, that the fact might be charged, either by way of supplement or amendment.

The plaintiff does not appear to have had any particular right or claim to sue out letters of administration on the estate of the testator; and his title to sue is destitute of every adventitious aid and presumption. We are driven, therefore, to discuss the strict point of law, whether the surrogate had jurisdiction in the case.

The Court of Probates, consisting of a single Judge, was recognized in the 27th article of the Constitution ; and by the act of the 16th of March, 1778, organizing the government, the Judge of that Court was declared to be vested with all and singular the powers and authorities, and to have the like jurisdiction, in testamentary matters, which the governor of the colony of New-Yorh had exercised, as Judge of the Prerogative Court, or Court of Probates of the colony. Under this authority, the Court of Probates issued, exclusively, letters testamentary, and letters of administration, upon proof taken, as well by the surrogates, as in that Court; and this practice was continued until the power of the Surrogates was enlarged by the act of the 20th of February, 1787. (Sess. 10. ch. 38.)

Under the last act, Surrogates in each county were authorized to grant letters testamentary, and letters of administration with the will annexed, and letters of administration of persons dying intestate “ within their respective counties;” and the same were declared to be as valid as if issued by the Court of Probates. But in all cases of persons dying “ out of this state,” or within this state, “ not inhabitants thereof,” their wills were to be proved, and administration of their personal estates granted by the Judge of Probates, “ in the manner heretofore used, and before, or by no other person.”

The revised act of the 27th of March, 1801, declared, also, that the Judge of the Court of Probates, was vested with all the powers and authorities of the Court of Probates of the colony of New-York, “ exceptas was therein otherwise providedand in that act, the powers of the Surrogates were continued, with some little alteration in the phraseology of the provisions. The Surrogates were declared, by the third section of the act, to have, “ except as to persons who may not, at the time of their decease, be inhabitants of this state,” the sole and exclusive power to grant letters testamentary, and letters of administration of the goods of persons dying intestate, or with the will annexed, of all deceased persons who, “ at, or immediately previous to their death, shall have been inhabitants of the respective counties of such Surrogates, in whatever place the death of such persons may have happened.” And in the 12th section of the act, it was declared, that in all cases of persons dying “ out of this state,” or of persons dying within this state, “ not inhabitants of this state,” their wills may be proved before, and administrations of their personal estates granted by, the Judge of Probates, “in the manner heretofore used, ns well as by any of the said Surrogates.”

These words, tis well as by any of the said Surrogates, are a substitute for the words, and before or by no other person, in a similar section in the act of 1787; and, upon the first impression, it would, seem to have been intended to give the Surrogates concurrent jurisdiction with the Judge of Probates, in the case of persons not inhabitants of this state, as the former section had already given them exclusive jurisdiction, where the persons dying were inhabitants. But these provisions in the act of 1801, having been literally transcribed into the new revised act of 1813, (1 N. R. L. p. 444.) received a judicial exposition in the Supreme Court in Weston v. Weston. (14 Johns. Rep. 428.) It was there solemnly adjudged, that the Surrogate of the county of Onondaga, had no authority to grant letters of administration upon the estate of a person dying out of the state, and not being an inhabitant of it. The words, “ as well as by any of the Surrogates,” were taken distributively, and applied only to that part of the section which was supposed to give to the Judge of Probates, power as to persons dying out of this state, who were at, or immediately previous to their death, inhabitants of the state. The 3d section of the act had already given the Surrogates exclusive power in the case of inhabitants of this state, “ in whatever place the death of such persons may have happened.” There is still a difficulty in supposing, as the case of Weston v. Weston seems to suppose, that the other section (being the 15th of the act of 1813) intended to give any concurrent power to the Judge of Probates, in the case of persons dying out of this state, who were inhabitants of it, and absent animo revertendi, or, in the words of the act of 1787, who died “ while absent from home, upon a journey on business.” The 3d section of the act of 1813, gave “ sole and exclusive power,” in such case, to the Surrogates; and could the 15th section have meant any thing so repugnant to that 3d section, as to give the Court of Probates “ concurrent” power in that case ? If, in order to reconcile both parts of the act on this point, we construe the 15th section as meaning to give to the Court of Probates, jurisdiction in the case only of persons dying without, or dying within the state, not being inhabitants of it, then the words as well as by any of the said Surrogates, become senseless, unless they are to be construed as giving a concurrent jurisdiction to the Surrogate, and the Judge of Probates, in the case of persons not inhabitants of this state. There is no absolute and irreconcilable inconsistency between the 3d and 12th sections of the act of 1801, or the 3d and 15th sections of the act of 1813, on this construction, giving to the Surrogates exclusive jurisdiction in the case of inhabitants of this state, and concurrent jurisdiction in the case of persons not inhabitants of this state. The exception in the third section, applies to their exclusive jurisdiction, for it is declared, that except as to persons not inhabitants, they shall have full and exclusive jurisdiction ; and the statute ma)', afterwards, have given to them concurrent power as to persons not inhabitants, without overthrowing the exception.

I should, therefore, have had doubts upon the construction given to the Surrogate’s powers by the decision in Weston v. Weston, if the question had arisen, de novo, before me; but I do not feel myself at liberty to seek after another construction, in opposition to such high authority; and especially in a case where the point came properly and directly before the Supreme Court. It would be a great public inconvenience, and tend to render the law vague and uncertain, to introduce conflicting decisions upon the construction of the powers of public oflicers, when those powers are in constant activity.

Assuming, then, (as I think' I am bound to do, under a proper sense of respect and comity) the authority and validity of the construction given to the Surrogate’s powers, by the case of Weston v. Weston, we are next to inquire, whether the Surrogate of the city of New-York has other and greater powers, in the given case.

The act of 1801, directed administration to be granted, without sureties, to the Chamberlain of the city of New-York, in the case of “ any person dying intestate within the G*ty an¿ C0Unty of New- York and in case the widow, or next of kin, should not apply within one week. But the administration was to be granted by the Surrogate, or the Judge of the Court of Probates, “ as the case might be and it, accordingly, left the powers distributed between the Surrogate and the Judge of Probates, as it found them. The act of 31st March, 1802, (Sess. 25. ch. 83.) extended the above provision to “ all cases of persons not resident within this State, who may die intestate, leaving goods and chattels within the city and county of New-York, whether such intestate shall die within this slate or not.” These two provisions were consolidated and transcribed into the revised act of 1813; (1 N. R. L. 449. s. 17.) but the question of jurisdiction between the Judge of Probates and the Surrogates, was not touched, altered, or affected, by any new or different provision. The power was still to be exercised by the Surrogate or Judge of the Court of Probates, “ as the case might be.” Each officer was left to move in the particular sphere in which the law had previously placed him.

The act of the 11th of April, 1315, (Sess. 38. ch. 157.) substituted a public administrator for the city oí New-York, in lieu of the Chamberlain, in the above case; and the consolidated provision in the act of 1802, was re-enacted in the same words, but with additional provisions, which would seem, by implication, to have given jurisdiction to the Surrogate, even to the extent of the whole case, as stated in the act of 1802. It declares, that if the widow, or next of kin, shall not apply within thirty days after such citation, as is therein after directed, to the Surrogate or Judge of the Court of Probates, “ as the case may be,” for administration, that then administration was to be granted to the public administrator. The citation, therein directed, is to be issued, not by the Judge of Probates, but by the Surrogate, to the widow and next of kin, to appear and show cause, why such administration should not be grantedand before whom are they to appear and show cause ? If before the Surrogate, as the provision would seem necessarily to imply, it then equally implies that the Surrogate may grant letters of administration in the case, which is, if any person, not resident within this State, dying intestate, leaving goods and chattels within the city and county of New-York, whether such intestate shall die within this state or not.

But, if it be admitted, that the Surrogate of New-York has greater powers than the Surrogate of Onondaga county, it is only in the case of persons dying intestate, and leaving goods and chattels within the city and county of New-York. All the special powers (if any there be) granted to the Surrogate of New-York, in extension of the ordinary jurisdiction of the Surrogate, are confined to the case of persons resident abroad, dying intestate, and leaving goods and chattels in New-York. The revised act of 1813, in the 3d, and again in the 10th section, has clearly noticed, and marked the distinction between an administration upon the estate of a person dying intestate, and an administration with the will annexed; yet, in the 17th section of this act, and in the subsequent acts on that subject, the distinction so material in itself, so well known in law, and so familiar in the language of the Legislature, is omitted, and the new and special provisions for the city of New-York, are confined to the case of persons dying intestate.

In the case before me, Phineas Miller did not die intestate. He made a will, appointed executors, and one of them administered, and her powers and acts are recognized in the plaintiff’s case : nor does it appear that Ph. Miller, the testator, left any goods and chattels in the city of New-York. If the claim upon the defendant be goods and chattels, yet ■the bill admits that the defendant resided in Dutchess county. Debts due by specialty are said to be bona notabilia, in the place where they are, that is, where the creditor resided and died, and not where the debtor" inhabits; but debts due by , simple contract are bona notabilia where the debtor resides. ( Godol. Orp. Leg. 70.) There is nothing in this case, therefore, that can help the plaintiff. To give to the Surrogate of New- York, a broader jurisdiction than the country Surrogates possess, it ought to have been distinctly shown, or made to appear, that Ph. Miller died intestate, and left goods and chattels in the city of New-York.

There may be no good reason why the Surrogate of JYew-YorJc should not have power to grant letters testamentary upon testators’ wills, as well as letters of administration upon intestates’ estates; and it might be very convenient that he should have the power; but if it is not contained in the statute, it certainly cannot be assumed. The argumentum ab incomenienti cannot be applied to extend the limits of power, when the language of the statute, defining the limit, is explicit, and its meaning clear, without any visible mixture of injustice or absurdity.

The power of proving wills, and granting administration, was originally vested in the Court of Probates; and though most of its jurisdiction is now transferred to the Surrogates, that is still the Court of Appeals from the acts tif the Surrogates, and it is the Court of general jurisdiction over the subject matter. There is some analogy, therefore, between the powers of the Surrogate and of the Ordinary, in England, and between the Judge of Probates and the Metropolitan of the province; and the rule may be applied to the Surrogate, which is applied to the Ordinary, that if "he grants administration in a case not within his authority, but in one that belongs to the Metropolitan, the same is absolutely void. (Allison v. Dickenson, Hardres, 216. Holt, Ch. J. in Black-borough v. Davis, 1 P. Wms. 41. Hilliard v. Cox, 1 Salk. 37. Godol. 70.) It is, also, a general principle, applicable to all Courts of limited jurisdiction, that they must act with-' in the limits of their authority; and it must appear upon the face of their proceedings, that they did so, or their acts will be deemed coram non iudice, and void.

I feel, therefore, constrained (however reluctantly) to declare, that the plaintiff has not shown a title to sue here, as the representative of Phineas Miller, deceased, and that the bill must be dismissed; and I shall do it without costs, and without prejudice.

Decree accordingly. 
      After a ple> is overruled, the same defence may be insisted on byway of answer.
     
      Though a ly "ntiüedFto tkn'hecannot taking regular mín!stra<tion.d"
     
      Jurisdiction of the Court of Probates,
     
      Surrogate of New-York.
     