
    JAMES CLINTON BOLTON, et al., Plaintiffs v. WILLIAM SCHRIEVER, et al., Defendants.
    
      Ejectment—Title—Probate of will—Surrogate has full jurisdiction over the issue of letters of administration and to determine the facts upon which their action must rest.
    
    The ease at bar is an action of ejectment, and decision upon the same rests upon the validity of the probate of a will. The plaintiffs contend that said probate Can be assailed in this action and that it is invalid by reason of the fact assumed to have been proven, that the testator, at the time of his death, was an inhabitant of the state of New York, but not an inhabitant of the county of New York, where the will was admitted to probate, and their contention rests upon the doctrine and decision of Bolton ». Jacks, 6 Robt. 166.
    
      Held, That the general doctrine of that case in regard to the want of jurisdiction, rendering void the judgment of any court, has stood the test of criticism, and is now good law in this state; but the decision of the case itself has not been so fortunate, and in respect to certain judicial determinations made by surrogates’ courts it has been in part overruled and disapproved by the Court of Appeals. That in Boderigas v. East Biver Savings Institution, 63 N. Y. 460, the Court of Appeals held that the statutes of this state furnish a complete system, regulating the jurisdiction and proceedings of surrogates’ courts, and the legislature intended to confer upon them sole and exclusive jurisdiction over the subject of granting letters of administration, and, as part of that jurisdiction, to determine upon evidence the facts upon which their action rest, and if the case be a proper one, the surrogate must act and issue letters, and that the letters so issued are conclusive evidence of 'the authority of the administrator until reversed on appeal or revoked. That in deference to the views of the learned judges on that occasion, this court is constrained to hold that the decision of Bolton®. Jacks is not to be followed in this case, and that if there is a distinction to be made between a judicial determination upon the question of death, as raised in the Boderigas ease, and a judicial determination of inhabitancy, as in the case at bar, which this court does not recognize, the plaintiffs should be left to urge that question upon the Court of Appeals. That inasmuch as letters testamentary stand upon 'the same legal footing as letters of administration, the conclusion reached is that it was error to direct a verdict for the plaintiffs, and it should be set aside.
    Before Freedman and Ingraham, JJ.
    
      Decided January 5, 1891.
    Verdict directed for plaintiffs and exceptions ordered to be heard in the first instance at general term.
    
      Johnston & Johnston, attorneys, and Leíais Johnston of counsel, for defendants, argued :•—■
    As to the validity and unassailability of the decree of the surrogate admitting the will of Theodore B. Tallmadge to probate. (1.) The decree of the surrogate admitting this will to probate cannot be attacked collaterally in this proceeding. The contention of the plaintiffs that it can be attacked collaterally rests solely upon the case of Bolton v. Jacks, 6 Robt. 166; the statement of law in that case, that want of jurisdiction in the court giving a judgment may always be shown in any collateral proceeding to render such judgment void is uncontrovertible, and has been approved in many subsequent cases, but as to the further rule laid down therein, that the finding of the surrogate on the facts presented to him of the residence of the said testator is not judicial, and that the judgment founded upon such finding can be attacked collaterally; that case has been overruled expressly by the Court of Appeals in the case of Roderigas v. East River Savings Institution, 63 N. Y. 460, in which case the Court of Appeals, Earl and Miller, JJ., writing the opinions, holds that that decision that the proceedings of the surrogate were void, and could be attacked collaterally, “ was unsound,” and further holds that a surrogate’s decision on the existence of facts conferring jurisdiction is judicial (so stated by Sandford, J., in Boller v. The Mayor, 40 N. Y. Super. Ct. R. at pp. 533, 534, 535 and 536). If inquiry into the death of a person on whose estate administration is applied for is judicial, why is not inquiry as to the inhabitancy of the deceased (Roderigas v. East R. S. I., 63 N. Y. at p. 467)? The surrogate in this case had presented to him a verified petition showing that the decedent was an inhabitant of the city and county of New York. The surrogate in passing upon the questions involved in this verified petition as to his jurisdiction in the premises acted in a judicial manner, and his decision cannot be attacked collaterally. (2.) The Supreme Court in two cases, one being Morrell v. Dennison, 8 Abb. Pr. R. 401, decided in 1859, and passing upon the law of 1837, and upon the identical facts in issue here, holds that where the jurisdiction of the subordinate tribunal having cognizance of the general subject has attached by the presentation of a verified prima facie case, and by the appearance of the parties, e. g. in the case of proceedings before the surrogate’s court for the probate of a will, even on the quasi jurisdictional fact, such as that of inhabitancy, its decision is conclusive unless reversed on appeal. It further holds that where after a great lapse of time it is sought to avoid collaterally the proceedings of the surrogate in admitting to probate a will on the ground that by reason of the testator’s non-residence the surrogate had no jurisdiction, the question is not, was the inhabitancy of the testator such that the surrogate has no jurisdiction, but was the surrogate necessarily wrong in deciding on the evidence before him that the intestate was an inhabitant of his county. (3.) And the other case, being Bolton v. Brewster, 32 Barb. 389 (cited with approval in the Roderigas case and also passing upon the identical facts in issue herein), where the court holds that general jurisdiction being given to the surrogate’s court (see Laws of 1837, chap. 460, § 1, pp. 1 and 5), and as that jurisdiction depends upon facts which must be brought before the court for its determination upon evidence and it is required to act upon such evidence (Laws 1837, chap. 460, § 5), its decision upon the question of its jurisdiction is .conclusive until reversed, revoked or vacated so far as to protect its officers and all innocent persons who act upon the faith of it, which is practically the decision in the Roderigas case (see 63 N. Y. at p. 464). See also Bumstead v. Read, 31 Barb. 661, also passing upon the same facts as in the case at bar; as also Bolton v. Brush, 8 Abb. 389. The surrogate’s court had exclusive jurisdiction of all other courts to admit this will to probate (Laws of 1837, chap. 460, § 1, §§ 16 and 17). (4.) If the surrogate had refused upon the petition before him to admit the will to probate, the executor so applying could have secured a peremptory writ of mandamus from the Supreme Court to compel the surrogate to admit the will to probate (People v. Judges of Dutchess C. P., 20 Wend. 656; Anderson v. Anderson, 112 N. Y. 104; Roderigas v. East R. S. I. 63 lb. at p. 466; Estate of Hammersley 9 Civ. Proc. R. 293). And the surrogate having made a finding of fact, as will be found in the letters testamentary, that the testator was an inhabitant of the county of New York, this degree cannot be attacked in a collateral proceeding of this kind, the remedies for the parties being solely in the surrogates court, and until that decree is reversed or vacated or revoked it is conclusive here. The court is also respectfully requested to examine the cases of Kelly v. West, 80 N. Y. 144, 145, and Harsen, Admr. v. Clark, 14 Week Dig. 136. If the surrogate had admitted the will to probate upon a petition which did not set forth that the testator was an inhabitant of the county of New York, but if said . petition had set forth that he was an inhabitant of Columbia county, then the decree would be absolately void ; but being required to act by the presentation of the petition which, if true, gave him jurisdiction and compelled him to act (Laws of 1837, chap. 460, § 16), all innocent parties who had acquired any rights under that decree are protected thereby, and the remedy of the party is solely in the court which admitted the will to probate (Matter of Harvey, 3 Redf. 216). Evidence of the inhabitancy of the testator was before the surrogate ; if such evidence had not been before him and he had made a finding as to the residence without evidence, then the decree would have been void and the recitals therein would have amounted to nothing. The distinction between the cases is very clear. Such is the decision of this court at general term on December 5, 1889, in the case or Gilman v. Tucker, 28 N. Y. St. Rep. 587, where it was held that the judgment was not void and was regular when entered, and the appropriate remedy was by an appearance and motion in the court wherein the judgment was entered. Section 2627 of the Code of Civil Procedure states that the decree is only presumptive evidence that the matters therein recited are true, but this presumption is raised only to meet the exigencies required in the further provisions of the Code that probate can be attacked or a will re-proved within a certain time (§§ 2647 and 2648), but this does not apply to actions in the other courts or in collateral proceedings. (5.) A careful examination of all the reported cases- will convince the court that the cases as to the right to attack a judgment in a collateral proceeding resolve themselves into two classes : First, cases where the evidence offered to attack a judgment shows that the evidence or facts upon which such judgment was rendered could not, by any possibility, have existed, then such judgment is void ; and, second, where the evidence offered goes merely to contradict the evidence upon which the judgment was rendered ; in which cases the judgment cannot be attacked collaterally, the remedy being by appeal or by motion in the court where the judgment was entered to vacate the same. In the case at bar, the evidence offered goes merely to contradict the evidence submitted in the verified petition before the surrogate. (6.) An examination of the following cases will show the truth of the foregoing rule. McCarthy v. Marsh, 5 N. Y. 263 ; Bumstead v. Read, 31 Barb. 661; Porter v. Purdy, 29 N. Y. 106 ; People v. Waldron, 51 How. 221 ; Lewis v. Dutton, 8 lb. 103 ; Skinnion v. Kelly, 18 N. Y. 356; Sheldon v. Wright, 5 lb. 497; Rusher v. Sherman, 28 Barb. 416; Kinnier v. Kinnier, 45 N. Y. 535; Staples v. Fairchild, 3 lb. 41. The case cited by the plaintiff’s counsel to the court below, Chatman v. The Phenix Nat. Bank, 44 N. Y. Super. Ct. Rep. 340, supports the contention of the defendants, and we fail to see how it has any bearing favorable to the plaintiff, and trust that the court will examine the record of this case, as it will surely convince the court that such contention is right. In that case Judge Fkeedman says (p. 360): “ Where a statute prescribes that some facts must exist before jurisdiction can attach in any court, such fact must exist before there can be jurisdiction, and the court cannot acqixire jurisdiction by erroneously deciding that the fact exists and that it has jurisdiction, but where general jurisdiction is given to the court over any subject, and that jurisdiction depends in a particular case upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence, its decision upon the question of its jurisdiction is conclusive until reversed, revoked or vacated so far as to protect its officers and all innocent persons who act upon the faith of it.” Thus it will be seen that the weight of decisions is in favor of the defendants’ position in relying upon the efficacy of this decree. The case of Bolton v. Jacks stands alone opposed to the defendants’ position. That case has been expressly disapproved twice in the Court of Appeals. Roderigas v. East Riv. Savs. Inst. 63 N. Y. at p. 469, holds that in this respect, the decision in Bolton v. Jacks is unsound, and that the finding of a surrogate upon the affidavits presented to him regarding the death of a person is judicial and cannot be attacked in a collateral proceeding. In the second appeal of the same case (76 N. Y. at p. 321) the court says: “ If the surrogate has jurisdiction of the general subject matter, he may exercise that jurisdiction in a variety of cases depending upon residence and the like, and his decision after a hearing of the parties, upon the question whether the case calling for the exercise of jurisdiction exists or not, is protected from- collateral attack. In other words, it is enough if he has general jurisdiction of the subject matter.” * * * “ But if a person be actually dead, then the surrogate is vested with power over the general subject matter. In the latter case he has a right to act, and although he acts erroneously his action cannot be impeached collaterally. 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.” The Court of Appeals in the case of Ferguson v. Crawford, 70 N. Y. 253, cited the Bolton u. Jacks case with approval, in so far as that case decided that a judgment can always be proved to be void in a collateral proceeding by showing that the court granting it had no jurisdiction of the subject matter or acquired jurisdiction of the parties, but did not comment at all upon the bearing of that case in respect to which it was disapproved in the Roderigas case. See same statement of the law by Sandford, J. in Boller v. 
      Mayor, supra. Thus will be seen a clear distinction between the two principles of law involved.
    
      Edward C. Perkins and James Clinton Bolton, attorneys and of counsel, for plaintiffs, on the questions considered, argued :—
    The probate of the supposed will of Dr. Tallmadge was void, and as there is no other evidence of the existence of a will, the legal title is in the plaintiffs as his heirs. The evidence shows conclusively that Dr. Tallmadge was an inhabitant of the state of New York, and was not an inhabitant of the county of New York, at the time of his death. Under this state of facts, the proposition stated as our first point depends mainly on our showing : (1.) That the surrogate of New York county did not have jurisdiction to admit the will to probate. (2.) That plaintiffs are not concluded by the probate from showing that the surrogate acted without jurisdiction. Both these propositions were established as the law by the general term of this court in the case of Bolton v. Jacks, 6 Robt. 192. That case was decided with great deliberation, and the opinion of Jones, J., contains a most elaborate and learned discussion of the questions involved, and a complete review of* the cases in point. We consider it unnecessary, therefore, to do much more than show that the law has not been changed since that decision.
    First Dr. Tallmadge being a resident of another county, the surrogate of New York county had no jurisdiction to admit his will to probate. Bolton v. Jacks, 6 Robt. at pp. 192-198. As to this branch of the case, the decision in the Jacks case has never been questioned. We therefore assume that this court will hold itself bound by it, and content ourselves with citing that portion of Judge Jones’ opinion which discusses it.
    
      Second :—The decree of the surrogate admitting the will to probate can be questioned for want of such jurisdiction. Bolton v. Jacks, supra, pp. 198-227. On this point also we might rest our case upon that just cited, were it not so strenuously urged, that the authority of the Jacks case has been so weakened by what was said of it in the famous, or rather notorious, case of Roderigas v. The East River Savings Bank, 63 N. Y. 460, that this court should disregard it. There is no difficulty, however, in showing that the criticisms of the Jacks case by Miller and Earl, JJ., in the Roderigas case, were not merely dicta, but dicta founded on a misapprehension of the law applicable to the Jacks case ; and an assumption that it was the same as that applicable to the Roderigas case ; and we shall also show that in later cases the Court of Appeals, and this court also, have recognized and approved the law laid down in the Jacks case. We will first compare the Roderigas and the Jacks cases. The Roderigas case was an attempt to impeach letters of administration issued by the surrogate of New York county, on the ground that the' supposed decedent was alive when they are granted. The Jacks case was, and this case is, an attempt to impeach the probate of a will by the same surrogate, on the ground that the supposed testator was not an inhabitant of the county where the will was proved. In the Roderigas case it was admitted that the surrogate was not given jurisdiction to issue letters on the estate of a living person, and the question before the court was whether he was given jurisdiction to decide that a living person was dead. Miller, J., says (p. .471) : “It is no doubt true that the surrogate has no jurisdiction to grant letters of administration on the estate of a living person ” ; and Earl, J. (p. 466), says : “ While the statute gives him no jurisdiction to administer upon the estate of a living person it imposes upon him the duty of inquiry,” etc. So it was decided in the Jacks case (and must, as we have undertaken to show, be assumed in this case), that the surrogate had no jurisdiction to admit to probate the will of Dr. Tallmadge.he not being an inhabitant of the county ; and the question is whether the surrogate had jurisdiction to decide that he was an inhabitant. Now does it follow that, because the letters in the Roderigas case were held unassailable by proof that the decedent was living, this probate is unassailable by proof that the decedent was not an inhabitant ? Because if it does not follow, then the remark as to the Jacks case was a mere dictum. The answer to this question depends on whether the grounds of the conclusion so reached in the Roderigas case apply to the Jacks case. Now the ground of the Roderigas decision is, that the surrogate did have jurisdiction to decide that the supposed intestate was dead, because, and simply and solely because, the statute imposed on the surrogate the duty of determining whether he was dead or not. Consequently it does not follow from that decision that the surrogate had jurisdiction to decide whether Dr. Tallmadge was an inhabitant of New York-county, unless the statute imposed on him the duty of determining that fact, which it does not. It remains only to show : (1.) That the decision in the Roderigas case went on the statute alone. (2.) That the statutes governing the two cases are essentially different in these regards. For convenience, we will first compare the statutes, and then demonstrate the first of these propositions. “ Letters op Administration,” 2 R. S. 74, § 23. “ The surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant letters of administration, etc. * * * of persons dying intestate in the following cases : " Id. § 26. “Before any letters of administration shall be granted on the estate of any person who shall have died intestate, the fact of such person’s dying intestate shall be proved to the satisfaction of the surrogate, who shall examine the persons applying for such letters, on oath, touching the time, place, and manner of the death, and whether or not the party dying left any will ; and he may also, in like manner, examine any other person and may compel such person to attend as a witness for that purpose.” The provisions requiring proof of death to the satisfaction of the surrogate are stated by Earl, J. (63 N. Y. 467, 468), to be taken from an act of 1792 (2 Greenl. 420), which recited that “ administrations had been frequently granted in this state, upon the mere suggestion of the party applying for the same, without the proof of the death of the person upon whose estate they were granted ; and it has happened that administration had been granted upon estates of persons who were then living and residing within this state ” ; and by which it was enacted “ that no letters should be granted until due proof be made before the said judge or surrogate to his satisfaction that such person was dead.” “ Wills,” Laws 1837, ch. 350, § 1. “ The surrogate of each county shall have jurisdiction, exclusive of every other surrogate, within the county for which he may be appointed, to take proof of last wills and testaments of all deceased persons, in the following cases : ” Id. § 4. “ The executor, devisee or legatee named in any last will, or any person interested in the estate, may have such will proved before the proper surrogate.” “ § 5. On application to the surrogate, he shall ascertain by satisfactory evidence the following facts : * * * 3. If the will relate to both real and personal estate, the names of residence of the heirs, widow, and next of kin of the testator, or that, upon diligent inquiry the same cannot be ascertained.” “ § 6. The surrogate shall also ascertain whether any and which of the persons mentioned in the preceding section are minors,” etc. It is thus apparent that while the statute not only authorizes, but requires the surrogate to pass on the question of death before granting letters of administration, it neither requires nor authorizes him to pass on the question of residence before proving a will. We will now show that it is upon the statute as to letters that the Roderigas caséis based. Two opinions were written in this case. That of Judge Miller begins by quoting § 23 of the statute as we have cited it, underlining the words “ shall be proved to the satisfaction ” and others by which the surrogate is required to make the adjudication. He then says (p. 470): “ The first part of the section cited makes provision for proof of death and intestacy in all cases to the satisfaction of the surrogate, and the latter portion for an examination as to the death, the circumstances connected therewith, and as to the fact whether the party dying left a will. The foundation upon which the proceedings rest are death and intestacy, and both of these must be satisfactorily established. * *.* Such an application is a trial by the officer named of the fact of the death and intestacy of the person whose estate is sought to be administered upon.* * * The power and duty of the surrogate to issue the letters upon satisfactory proof being furnished, is very clear, and the point to be determined is, whether he had no jurisdiction because it subsequently turned out that the alleged intestate was living. It is no doubt true that the surrogate has no. jurisdiction to grant letters upon the estate of a living person ; but a mode has been provided by law to test the fact whether a person is deceased, and as the legislature has enacted how this shall he done, and as the adjudication of a competent tribunal must stand when jurisdiction is acquired until reversed or superseded, as the law requires, it is not apparent that such a determination is invalid and without jurisdiction ” (p. 471). “ If the statute (§ 24, supra) had provided only for the issuing of letters and not ¡proceeded to state what proof was required, it might well be argued that no jurisdiction was acquired. So, if the surrogate had issued the letters without adequate proof, the same result would follow ” (p. 472). * * * * “ The power of the legislature to pass laws in reference to the administration of the estates of deceased persons cannot be doubted. And, as incident to that power, it is entirely competent to authorise the tribunal constituted for such a purpose to pass upon the question of fact. * * * If the doctrine can be upheld that in such cases there is no power to confer jurisdiction to decide the question,” etc., etc. (p. 472). Finally, in speaking of the case of Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, which arose upon precisely similar facts, he says (p. 475): “ There was no statute in the state of Massachusetts making special provisions in regard to the subject as there is here ; and, therefore, it has no application. In reference to this case, as well as other cases which uphold the same doctrine, it may also be remarked that they were disposed of without regard to any statutory regulations which conferred upon a tribunal organized for that purpose, within the jurisdiction where they were decided, authority to investigate, pass upon and decide the question, whether a person "whose estate was sought tobe administered upon was deceased. Such was the object and purpose of the statute cited ; and independent of any rule which may have otherwise prevailed where no tribunal was vested with power to determine the question, they must be regarded as conclusive.” So Earl, J., in his concurring opinion cites at length the same statute, as well as that of 1792 quoted above. He says (p.467): “I am of opinion, taking into consideration the various provisions of the statutes that it was the intention of the legislature to confer upon surrogates’ courts sole and exclusive jurisdiction over the subject of granting letters of admistration, and as a part of that jurisdiction to determine the facts, upon sufficient evidence, upon which their action must rest.” We will not extend our quotations. It must already be evident that the Boderigas case was decided on grounds absolutely irrelevant to the Jacks case or this case. The question in the Boderigas case was simply whether, the surrogate having jurisdiction to inquire into the fact of death, his decision on that question of fact could be attacked collaterally, not for lack of jurisdiction, but for a mistake of fact. The question in this and the Jacks case is whether, the surrogate having no jurisdiction to inquire into the fact of inhabitancy, his jurisdiction to prove the will can be attacked collaterally. One is a question, whether there is jurisdiction or not; the other is a question whether, there being no jurisdiction, the decree can be attacked. The remark about the Jacks case was, therefore, a dictum, and, moreover, it was a dictum evidently resting on the assumption that the law as to wills was the same as that as to administration. It should be noted, too, that the two opinions in the Boderigas case are not concurred in even by the two other judges who voted for reversal. Anything unnecessary to the decision, therefore, is to be treated as the mere personal opinion of the judges delivering the opinions.
    Probably no case in the New York Beports has been so severely criticised as the Boderigas case. Much of this criticism is due, we think, to overlooking the fact that the decision turned on the peculiar language of the statute. It shows, however, that so far as a case is concerned to which, like that at bar, no such statute applies, the universal consensus of opinion is, that the jurisdiction can be questioned collaterally. To this effect see Thomas v. The People, 107 Ill. 517 ; Devlin v. The Commonwealth, 101 Pa. St. 273 ; Lavin v. Emigrant Bank, 18 Blatchf. atp. 5. (per Choate, J.) ; 21 Alb. L. J. 65 ; 22 lb. 231; 10 Am. Law Reg. 787 ; Melia v. Simmons, 45 Wis. 334 ; Redfield on Surrogates, 48, 49 n. (1.) ; Jochumsen v. Suffolk Bank, 3 All. 87 ; Holyoke v. Haskins, 5 Pick. 20 ; Same n. Same, 9 lb. 259 ; Duncan v. Stewart, 25 Ala. (N. S.) 408 ; Morgan v. Dodge, 44 N. H: 259 Cutts v. Haskins, 9 Mass. 547 ; Griffin v. Frazier, 8 Cr. 9. Not only has Bolton v. Jacks not been overruled, but the principle upon which it depends has been repeatedly approved, and its concise statement by Jones, J., has been constantly quoted as the best exposition of the law. That statement is as follows : “ It is now conceded, at least in this state, that want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general, limited or local jurisdiction, or of record or not, and that the bare recital of jurisdictional facts in the record of a judgment * * is not conclusive, but only prima facie evidence of the truth of the fact recited, and the party against whom a judgment is offered is not by the bare fact of such recitals estopped from showing, by affirmative proof, that they were untrue, and thus render the judgment void for want of jurisdiction.” Quoted and approved in Ferguson v. Crawford, 70 N. Y. 255.
   By the Court.—Freedman, J.

At the trial a verdict was directed in favor of the plaintiffs, and the trial judge directed that the exceptions taken by the defendants be heard at general term in the first instance, and that the entry of judgment be suspended in the meantime.

. The action is in ejectment to recover possession of a lot of land known as No. 398 Tenth avenue, between 32d and 33d streets, in the city of New York.

On January 17, 1841, Theodore B. Tallmadge died seized of the premises in question, leaving him surviving two daughters, his only heirs at law, one of whom is the plaintiff Angelina T. Arthur, and the other of whom, Laura E. Bolton, was the wife of the plaintiff James Clinton Bolton. Laura E. Bolton after-wards died leaving a will devising all her real estate to the plaintiff James Clinton Bolton.

The common source of title of both the plaintiffs and the defendants is the said Theodore B. Tallmadge, the plaintiffs claiming by descent, and the defendants adversely under his will and subsequent conveyances beginning with a deed from Philip Burrows, executor of Theodore B. Tallmadge deceased. Probate of the said will was made apparently in due form of law in the surrogate’s office in the county of New York in 1841, and if the said probate cannot be assailed in this action, the defendants showed a sufficient title.

The plaintiffs contend that the said probate can be assailed in this action and that it is invalid by reason of the fact which may be assumed to have been proven at the trial, that Tallmadge, at the time of his death, was an inhabitant of the state of New York, but not an inhabitant of the county of New York, and their contention rests upon the doctrine and decision of Bolton v. Jacks, 6 Robt. 166.

The general doctrine of the case cited, namely, that want of jurisdiction renders void the judgment of any court, whether of superior or inferior, general or limited, or local jurisdiction ; that the recital of jurisdictional facts in the record of such judgment is not conclusive (unless made so by statute), but only prima facie evidence of the existence or occurrence of such facts ; and that the party against whom the record of such judgment is offered in evidence, is not estopped by such recitals from showing affirmatively by proof dehors the record that they are untrue, and from thus avoiding the judgment, has stood the test of criticism and is now undoubted good law in this state. It was expressly approved by the Court of Appeals in Ferguson v. Crawford, 70 N. Y. 253 (267.) The decision of the case has not been so fortunate and in respect to certain judicial determinations made by surrogates’ courts it has been in part overruled and in part disapproved by the Court of Appeals. ■

In Roderigas v. East River Savings Institution, 63 N. Y. 460, it was held that the surrogate, in granting letters upon the estate of the plaintiff, who was not then dead, acted judicially ; that, under the statutes of this state, he had jurisdiction to issue the letters upon a judicial inquiry and determination by him, that death had occurred ; and hence, that the letters1 so granted protected the defendant as an innocent third party as to the amount paid to the administratrix on the faith of the letters, though they were' in fact granted on false evidence. This determination was made upon the construction of the statutes of this state regulating the jurisdiction and proceedings of surrogates’ courts, and it was held that the said statutes furnish a complete system ; that, in enacting the same, the legislature intended to confer upon surrogates’ courts sole and exclusive jurisdiction over the subject of granting letters of administration, and as part of that jurisdiction to determine, upon sufficient evidence, the facts upon which their action must rest ; that, if the case be a proper one, the surrogate must act and issue letters ; and that thereupon the letters so issued are conclusive evidence of the authority, of the administrator, until reversed on appeal or revoked.

The decision of the Court of Appeals in the case last referred to related to a judicial determination made by a surrogate upon the question of death. But as to a like determination of the question of inhabitancy equally strong views were expressed and the decision of Bolton v. Jacks in that respect was expressly disapproved by Earl, J. (p. 469) and questioned by Miller, J. (p. 475) by a reference to two other reported cases which are in conflict with Bolton v. Jacks.

In deference to the views expressed by these learned judges on that occasion, I feel constrained to hold that the decision of Bolton v. Jacks is to be followed no longer, and that, if there is a distinction to be made between a judicial determination upon the question of death and a judicial determination upon the question of inhabitancy, it is one which the plaintiffs should be left to urge upon the Court of Appeals. And inasmuch as letters testamentary stand upon precisely the same legal footing as letters of administration, and it not having been shown in this case, as was shown upon a re-trial of the Roderigas case, that the surrogate did not act judicially, the conclusion to be reached is that it was error to direct a verdict for the plaintiffs. Under the circumstances it is unnecessary to consider the other questions presented by the exceptions.

The exceptions of the defendants should be sustained, the verdict set aside and a new trial ordered with costs to the defendants to abide the event.

Ingraham, J.—(concurring).

I concur with Judge Freedman in his opinion. ' Upon the death of a resident of this state, jurisdiction to administer upon the estate of the deceased vests in the surrogate courts established in the several counties of the state, and this duty devolves upon the surrogate of the county in which the deceased resided at the time of his death.

The question of the inhabitancy of the deceased becomes a question that must be determined by the surrogate to whom an application is made for administration, and I think it is clear that the determination of that question is conclusive except in a proceeding to review such determination and cannot be attacked collaterally. This principle is recognized by the Court of Appeals on the second appeal in Roderigas v. East R. S. I., 76 N. Y. 321, where Church, Ch. J., delivering the opinion of the court says : “ But if a person be actually dead then the surrogate is vested with power over the general subject matter. In the latter case he has the right to act, and although he acts erroneously his action cannot be impeached collaterally. 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 has power to act upon the subject.”

This was the position of the surrogate when the application was made to admit the will of Tallmadge to probate and grant letters testamentary to his executor. He had jurisdiction of the subject matter because Tallmadge was dead. Whether the surrogate of New York county or the surrogate of Columbia county should admit the will to probate depended upon the question of the residence of Tallmadge at the time of his death, and that question the surrogate of New York was required to determine. The petition for the probate of the will alleged that Tallmadge resided in the city of New York, and he determined that he did so reside by the decree admitting the will to probate.

The authority of the surrogate to grant letters testamentary depended upon the probate of the will. It was the appointment of the executors by the will that gave the surrogate jurisdiction' to grant the letters, and if the surrogate had no jurisdiction to probate the will he had no jurisdiction to grant the letters ; yet, I hardly think it would be claimed that the letters issued were void so that a payment of a debt owing to the deceased to such executors would not have discharged the debt.

I think, therefore, that the plaintiffs had no title to the property, and that the complaint should have been dismissed.  