
    James Clinton Bolton et al., Pl’ffs, v. William Schriever et al., Def’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    Bes adjudicata—Decision of subrogate as to inhabitancy cannot be ASSAILED COLLATERALLY.
    The judicial determination of a surrogate, in proceedings for probate, as to the inhabitancy of the testator cannot be assailed colla erally.
    Exceptions ordered to be heard in the first instance at general term.
    
      Edward C. Perkins and James Clinton Bolton, for pl’ffs; Johnston & Johnston, for def’ts.
   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 Thirty-second and Thirty-third 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. Arthue, and the other of whom, Laura E. Bolton, was the wife of the plaintiff, James Clinton Bolton. Laura E. Bolton afterwards 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 B.obt., 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 de hors 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. Fast River Savings Institution, 63 N. Y, 469, 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 letters 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 intends 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 ease 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. t

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 dis-. tinction 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.

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 River Savings Institution, 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 executors. 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 bé 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.  