
    Sheldon v. Wright.
    
      Jurisdictional facts. — Administration.
    If the record of an inferior court contain evidence, tending to prove the facts necessary to confer jurisdiction, and it appear that such evidence was adjudged to be sufficient, such judgment cannot bHe impeached in a collateral procei ding.
    Under the revised laws of 1813, where the widow renounces, and all the children are minors, the surrogate had power to issue letters of administration to her nominee, without a citation to the next of kin.
    Sheldon v. Wright, 7 Barb. 39, affirmed.
    Appeal from the general term of the Supreme Court, in the seventh' district, where judgment had been rendered in favor of the defendant, upon a special verdict. (Reported below, 7 Barb. 39.)
    This was an ejectment to recover possession of the undivided third part of a farm in the town of Brutus, in Cayuga county, of which the plaintiff claimed to be the owner in fee. On the trial, at the Cayuga circuit, in April 1848, before Sill, J., there was a special verdict, embodying the following facts:
    * Aaron B. Sheldon, of the town of Brutus, in Cayuga county, died in February 1826, seised-in fee of the premises described in the declaration, leaving four children, including the plaintiff, his only heirs, him surviving: the said heirs were minors, the plaintiff being the oldest; he became twenty-one years of age on the 27th of April 1827. At the time of the commencement of this suit, John Wright, the defendant, was in possession of the premises, to the exclusion of the plaintiff, claiming the entire title to the whole and every part thereof, and had been so in possession, under an administrator’s sale, from about the 1st day April 1827.
    On the 16th May 1826, Mrs. Hope L. Sheldon, the widow of the decedent, signed and filed with the surrogate a paper, with an attesting witness, in the words following : “ To the surrogate of the county of Cayuga : I, Hope L. Sheldon, widow of Aaron B. Sheldon, late of the town of Brutus, in said county, deceased, do hereby renounce my right to administer upon the estate of said deceased; and I do recommend that Doctor Sylvester Willard, of Brutus aforesaid, be appointed administrator of the estate of said deceased. Dated May 16,1826.”
    On the same day, Sylvester Willard filed with the surrogate, the following petition: “ To the surrogate of the county of Cayuga: The petition of Sylvester Willard, of Brutus, in said county, respectfully showeth, that your petitioner is a friend of the family of Aaron B. Sheldon, late of the town of Brutus, in the county of Cayuga, deceased; that the said Aaron B. Sheldon died, in the town of Brutus, in the county of Cayuga, about the 15th of February 1826; that at, or immediately preceding, ^me he was an ^habitant *of said county of Cayuga. That the said deceased has left no last will and testament, as your petitioner has been able to discover, or has heard; that in the opinion of your petitioner, it is necessary that administration of the estate of the said deceased be granted to some discreet person; and your petitioner further shows, that all the goods, chattels and credits of the said deceased do not exceed in value the sum of eight hundred dollars. Your petitioner, therefore, prays that he may be appointed administrator of the goods, chattels and credits of the said deceased, and he will ever pray, <fcc. Dated, Auburn, May 16, 1826.”
    To this petition was subjoined an affidavit, that all the material facts therein stated were true, to the best of the petitioner’s knowledge and belief. This affidavit was duly sworn to before the surrogate, but the latter, by mistake, omitted to sign the jurat. No other proof was made to the surrogate, prior to the issuing of letters of administration to Willard, who was not related to the decedent, and no citations were issued to the next of kin.
    Letters of administration were, thereupon, granted to Willard, who filed an inventory showing that the value of the personal property, exclusive of that set apart for the use of the family, was $254.11. On the 6th September 1826, he presented the following petition to the surrogate : “ To the surrogate of the county of Cayuga: The petition *of Sylvester Willard, administrator of the estate of Aaron B. Sheldon, late of the town of Brutus, and county of Cayuga, deceased, showeth, that letters of administration were duly issued by the surrogate of the county of Cayuga, of the estate of the said deceased, to your petitioner, on the 16th day of May 1826; that the said deceased died seised of certain real estate, in this state, which will be more particularly described as this court shall direct; that your petitioner has made a just and true account of the personal estate of the said deceased, and of the debts of said deceased, and thereby hath discovered and hath reason to suspect, that the personal estate of the said deceased is insufficient to pay his debts; that said account is herewith ready to be delivered, as this court may direct. Your petitioner, therefore, prays that such proceedings may be had in the premises, as are by law required, to enable your petitioner to sell the whole, or so much of the real estate of the said deceased, as will be sufficient to pay his debts, and as in duty bound, &c.”
    
      To this was annexed an affidavit, sworn to before the surrogate, that the facts set forth in the petition, were true, to the best of the petitioner’s knowledge and belief; also, a schedule, entitled, “ an account of debts due from the estate of Aaron B. Sheldon, late of Brutus, deceased.”
    Under this title, the names of creditors, and the sums due each, were set forth, amounting in the aggregate to $1165.76. There was also annexed to the petition, an account of the debts due the estate, amounting to $89.23; all of which were stated to be bad, except one of $37.00, which was doubtful. Also, an account of the moneys received by the administrator, for account of said estate, amounting to $347.58, being the proceeds of the personal property sold at auction.
    sa^ September 1826, on the filing of said petition and schedules, the surrogate made, and entered in his book of records, an order, requiring all persons interested in the estate of said deceased to appear before him, at his office, in the town of Ledyard, in said county, on the 19th October, then next, at 10 o’clock, A. m., to show cause, if any they had, why the whole of the real estate whereof the said Aaron B. Sheldon died seised, or so much thereof as might be necessary to pay his debts, should not be sold; and directing that a copy of the order “be immediately published, for four weeks successively, in two of the public newspapers printed in this state, one of which must be a newspaper printed in the county of Cayuga.” This order was published in two newspapers published in Auburn, in said county of Cayuga, once in each week, for four weeks successively, in each paper, commencing in one paper on the 20th, and in the other, on the 26th September 1826; affidavits of such publications were made by the printers, and filed in the office of the surrogate, on the 2d and 8th days of December 1826; and those two were the only papers in which the order was published. The said order was also posted in two public places in the town of Bratus, at least four weeks previous to the 19th October 1826, and proof thereof was filed in the office of the surrogate, on the 8th December 1826.
    During the month of September, and after the order to show cause was entered in the book of records, an order was made and entered by said surrogate, bearing date “on the-day of September 1826,” reciting the presentation of the petition above mentioned for the sale of real estate, and that it appeared that Franklin, Mary Ann, Sarah Ann, and Eliza Ann Sheldon, were infant children and heirs-at-law of the deceased; and appointing Sylvester Sheldon, of the town of Brutus, a discreet and substantial freeholder (he being present in court and consenting thereto), guardian *of the said infants, for the sole purpose of appearing for them and taking care of their respective interests in the proceedings to be had upon said petition.
    On the 8th December 1826, an affidavit was made by the administrator, indorsed on said petition, stating that he had applied so much of the personal property of the deceased as had come to his hands, toward the payment of the debts of the deceased. And on.the same day, an order was made by the surrogate, at his office in Auburn, and entered in his book of records, reciting the presentation and substance of the said petition; that the petitioner had made and filed in the office of said surrogate a just and true account of the personal estate and debts of the deceased, whereby it appeared that the facts set forth in said petition were true; and reciting the making and substance of the order to show cause above mentioned, which then proceeded as follows:
    “And whereas, the said order was immediately after published,for four weeks successively, in two public newspapers, printed in the county of Cayuga, and no cause or objection shown, at the time and place specified in said order, or at any time since, why the whole of the real estate, or a part thereof, should not be sold; and whereas, upon hearing and due examination of the allegations and proofs of the said administrator, it is found, that the personal estate of the said deceased is insufficient to pay his debts, and that the whole of the personal estate has been applied toward the payment of said debts, .and that it is requisite and necessary to sell the whole of his real estate for the payment of his debts. It is, therefore, ordered, adjudged and decreed, and the surrogate by virtue of the power vested in him, doth order, adjudge, decree and direct, that Sylvester Willard, administrator as aforesaid, do sell at public auction the whole of the real estate whereof the said Aaron B. Sheldon died seised, hereinafter mentioned and set forth, as the same *has been represented and described unto the said surrogate (after giving legal notice thereof, and conforming in other respects to the requirements of the statute in such case made and provided), which said real estate is described as follows, to wit:” setting forth a description of seventy acres of land; and concluding with a direction, that before any deed should be executed for the premises, or any part thereof, the administrator should make a return of the proceedings had on the order, to receive the further order of the surrogate in the premises.
    On the 8th January 1827, a petition of the said administrator, duly verified, was presented to the surrogate, stating that the petitioner had, since the granting of" the order of 8th December, before mentioned, discovered that the boundaries therein mentioned, did not comprise the whole of said real estate, and praying that the former order might be vacated, and a new order granted for the sale thereof, comprising the whole of the real estate of which said Aaron B. Sheldon died seised. On the presentation of that petition, the surrogate made a further order, reciting the order of December 8th, with its date, and the last-mentioned petition, and directing the sale by the administrator of an - additional piece of land containing twenty-four acres and upwards, with a like direction to report his proceedings under the order, to the surrogate, to obtain further directions, before the execution of a deed. The lands embraced in the two orders were the same as described in the declaration in this suit.
    On the 20th March 1827, the administrator presented his report to the surrogate, showing that the premises had been duly advertised for sale, on that day, that he “ had caused the same to be sold at public auction,” and that, on such sale, they were struck off to John Wright (the defendant) for the sum of $1125, he being the highest bidder; that he had paid the same into the hands of the administrator, and was ready and willing to receive a deed for the *same, as soon as the court should confirm the sale and authorize the execution of such deed. The report was signed by the administrator, but was not verified by his oath or affidavit, nor by any other proof. Affidavits of the publication and posting of the notice of sale, were, however, annexed to it.
    The surrogate, on the 20th March, made an order confirming the report, and directing the execution of a conveyance of the lands to John Wright, in pursuance of his purchase. A deed was executed by the administrator to the purchaser, on the 26th June, 1827, reciting both orders of sale, and the order of confirmation, and purporting to convey to the purchaser, all the lands described in both orders of sale. The first order, however, was stated in said recital to have been made on the 6th September 1826, and the petition on which it was made, to have been presented to the surrogate, on the 8th December 1826. The second order referred to the first, by its true date of December 8th, 1826, as did the order of confirmation.
    Another deed, bearing date October 2d, 1847, executed by the administrator to the defendant, similar in all respects to that of June 26th, 1827, except that it correctly recited the order of December 8th, 1826, was produced on the trial and read. When the deed was produced, the execution of it had not been acknowledged, and there was no subscribing witness, but after it was offered, and before it was read, the execution of it was acknowledged by the grantor, before an officer authorized to take such acknowledgment, and the acknowledgment was duly certified.
    The supreme court, at general term, after argument, gave judgment in favor of the defendant, upon the special verdict; whereupon, the plaintiff took this appeal.
    
      W. Porter, for the appellant.
    
      John Porter, for the respondent.
   *Foot, J.

This was an action of ejectment to .recover land lying in Cayuga county. Aaron B. Sheldon, deceased, of the town of Brutus, in that county, owned the land at his death, which occurred in February 1826. He died intestate, and the appellant, being-one of his children and heirs-at-law, claims by descent. The respondent acquired his title, in January 1827, by purchase at a sale of the real estate of the intestate, made in pursuance of an order of the surrogate, entered in the month of December previous. There are numerous objections to the proceedings before the surrogate, *but in this collateral action, we can only in-J quire whether he had jurisdiction.

I. Had he jurisdiction to grant letters of administration on the estate of the intestate ? By looking at the statute under which the letters of administration in question were granted (1 R. L. of 1813, 445, § 3), it will be seen, that only two facts were necessary to give the surrogate jurisdiction: 1st. The death of a person : 2d. That at his death he was an inhabitant of Cayuga county. Both of these facts existed, and are found by the special verdict in this case, and both appear on the record of the proceedings before the surrogate, and that is sufficient to confer jurisdiction, as was correctly said by Beonson, J., in delivering the opinion of the supreme court in Bloom v. Burdick (1 Hill 134). A surrogate holds a court of limited jurisdiction, and the same rule is applicable to a surrogate’s court as to other inferior courts. That rule is, that there should always appear sufficient, on the face of the proceedings of an inferior court, to show that it had jurisdiction of the cause or subject of which it takes cognisance. The facts on which its jurisdiction depends must be averred and appear on the record; this rule is well settled, and has been often recognised and acted upon by our courts. Among other cases, see the following—Dakin v. Hudson (6 Cow. 221), Cleaveland v. Rogers (6 Wend. 438), Powers v. People (4 Johns. 292), People v. Koeber (7 Hill 39) and cases there cited.

The statute conferring jurisdiction on the surrogate, does not require preliminary proof to be made to him of the facts on which his jurisdiction depends, as does the statute giving jurisdiction to a commissioner in the case of an absconding, concealed and non-resident debtor (2 R. S. 3), and the statute giving authority to a justice of the peace to issue an attachment in the case of an absconding or concealed debtor (Id. 230). The difference between those cases, and inferior courts, in respect to the point under consideration, is plain and marked. See Miller v. Brinkerhoff (4 Denio 118).

*The act of 1813, giving the surrogate jurisdiction and regulating the proceedings before him, contains various directions; among them are these: he shall not grant administration, until he has satisfactory proof “ that the person of whose estate adminis-tratioH is claimed, is dead, and died intestate” (1 R. L. of 1813, 445, § 5), in case of an application for administration by a person not entitled, as next of kin, be shall issue a citation to the next of kin (Id. § 6); and on granting letters of administration, he shall take bonds with two or more competent sureties (Id. p. 447, § 10). These are, manifestly, more directions not affecting the jurisdiction of the surrogate, and for a departure from which his proceedings would be set aside on review. (Bloom v. Burdict, 1 Hill 134.)

The counsel for the appellant pressed upon the attention of the court, the defectiveness of the proof before the surrogate, of the death and intestacy of the decedent. For the reasons already given, this court cannot, in my opinion, examine that subject, in this action, and I will 'add the further reason, that intestacy has not only no connection with the question of jurisdiction, but must always be a subject of investigation before the surrogate, and whenever a will is propounded and contested, one of litigation, and often-times of protracted and severe contest. Surely, the jurisdiction of the surrogate’s court cannot depend on the results of such a contest, which often does not terminate till closed by a decision of this court.

II. The next question in the case is, whether the surrogate had jurisdiction of the subject of a sale of the intestate’s real estate, or, in other words, authority to order it sold for the payment of his debts. On this branch of the case, as well as the other, various objections are made to the proceedings before the surrogate, but this court can only notice those affecting his jurisdiction ; of these, there are three. 1. The presentation to the surrogate by the administrator of an account of the personal estate and debts of the decedent: *2. The publication of the order to show cause for four successive weeks: 3. The appointment of a guardian for the infants.

It must be borne in mind, tbat tbe authority given to the surrogate to sell the real estate of a decedent is in derogation of a common-law right, and can be exercised only in the case specified in the statute, and that case is, when the personal estate of a decedent is insufficient to pay his debts. The evidence of that fact is declared by the statute to be the account which the administrator is required to present to the surrogate of the personal estate and debts of the decedent.

1. Was such an account presented in this case? There was, accompanied by a petition of the administrator for a sale of the real estate. The criticism made on the heading of this account, because the word estate is used before the name of the decedent, is groundless; for the account, read in connection with the petition which accompanied it, and to which it was annexed, appears clearly to be the account which the statute required. The surrogate, therefore, had jurisdiction of the subject of the sale of the real estate in controversy. (See Jackson v. Robinson (4 Wend. 436); Jackson v. Irwin (10 Id. 441); Jackson v. Crawfords (12 Id. 533).

2. Publication of order for persons interested to show cause. It is important to ascertain, in the first place, to what class of facts this one, of the publication of the order, belongs; the principle on which it affects the jurisdiction of the surrogate; and the rule by which the sufficiency of the proof of it is to be tested. The surrogate unquestionably acquired jurisdiction of the subject-matter, on the presentation of the petition and account; but before he could grant a valid order of sale, ho must also acquire jurisdiction of the persons whose rights were to be affected by it, and that is accomplished by the publication of the order. Such publication must, therefore, be made, before full jurisdiction is obtained, not because the statute *directs it, for the statutory provision is merely directory, but because it is a great and fundamental “ principle in the administration of justice, that no man can be divested of his rights, until he has had the opportunity of being heard.” (Corwin v. Merritt, 3 Barb. 345, and cases there cited.) Publication of this order, then, is a jurisdictional fact, of the evidence of which the surrogate must necessarily judge. He has judged and decided, that the order was published as required by the statute, and his judgment appears on the record of his proceedings.

III. The last inquiry, then, is, can that judgment be overhauled in this collateral action, at the instance of the appellant ? The appellant became of age on the 27th of April 1827; the order of sale was in the month of December, and the sale took place in the month of March previous; and this suit was commenced early in the year 1847. The respondent paid the fair value of the property, and went into possession of it, under his purchase, on the 1st of April 1827, and has continued in it ever since. The injustice of now turning him out is most flagrant, and should not be done, unless some inflexible rule of law requires it. While inquiring, however, whether there is any such rule, care must be taken that the hardness of the present case does not lea< I the inquirer astray.

A similar question arose and was decided, at the last term of this court, in the case of Dyckman v. City of New York (ante, p. 434). In that case, the jurisdictional fact appeared on the record, as in this case, and on the trial in the collateral action, proof was offered to show that the jurisdictional fact did not exist. The judge rejected the proof, and this court affirmed the rejection, on the ground, that the record of the summary proceedings before the vice-chancellor was conclusive. That case was different from this, in three particulars, two unimportant, and one important in the application of the principle of law. The two unimportant particulars are these: In Dyckman v. City of New York, the evidence offered to controvert the jurisdictional fact was rejected, and *in the present case, it was received. In that case, the city corporation was a party to the summary proceeding, and defendant in the collateral action; in this case, the respondent is defendant in the collateral action, and not a party to the summary proceedings ; hut he is a privy in estate and contract with the administrator, who was a party, and, consequently, equally entitled with him to the protection which the record of the summary proceedings affords.

The important particular in which the present case differs from the one of Dyckman v. City of New York, is, that in the latter, Dyckman appeared in the summary proceeding, and litigated on the merits; while in the former, the appellant did not appear. The question then arises, does his omission to appear place him in a more favorable condition for litigating the jurisdictional fact; or, in other words, can a party to a judicial proceeding, by lying by, and omitting to appear, acquire a right to open the proceeding, at any time, and litigate, in a collateral action, a jurisdictional fact ? It will be perceived, at once, that if the right depends on appearance or nonappearance, the fact that the party claiming it has been served with personal or statutory notice, makes no difference. If there be any difference, it is in favor of him who has been served with personal notice, for such a notice is, in general, more difficult to prove, after a considerable lapse of time, than a notice by publication; and should a proceeding be opened, and an inquiry instituted, whether a party to it had been served with personal notice of it, his prospect of success would always be good, and the better, the longer the inquiry is delayed, and the later the day on which it is instituted.

It cannot be, therefore, that the acknowledgment or denial of the right of a party to a summary or other judicial, proceeding, to disregard the record of it, and litigate collaterally a jurisdictional fact, depends on his appearance or non-appearance in such proceeding. It rests on a deeper and broader ground, a principle which ^6S ^ourL<^a^on social *order, and which encourages peace, and discourages litigation; and that principle is, that when a court, or judicial officer, in the exercise of rightful functions, adjudges upon a matter, that judgment is final between the parties, and other persons claiming under them, and is conclusive on the facts which it embraces.

There are some qualifications of this principle, and the only one which it is necessary to notice, on the present occasion, is this: that if the court or officer who pronounces the judgment, has not jurisdiction of the subject and parties, his judgment is not conclusive. And the difficult and important point for decision is, whether the judgment of the surrogate is conclusive on the fact of the publication of the order for persons interested to appear. In my opinion, it is. When Thompson, C. J., said, in the case of Borden v. Fitch (15 Johns. 141), that “the want of jurisdiction is a matter that may always be set up against a judgmentand Spencee, 0. J., quoted his language with approbation, in Mills v. Martin (19 Johns. 33); and Sutherland, J., repeated it, in Latham v. Edgerton (9 Cow. 229); these distinguished judges doubtless intended only to say, that the want of jurisdiction might always be set up against a judgment, when it appeared on the record, or was presented in any other unexceptionable manner.

In the case of Borden v. Fitch, before referred to; the notice to the party against whom the proceedings in Vermont for a divorce were taken, was by publication. The ground taken by the supreme court, in deciding against the validity of those proceedings, was, that the party to be notified was a resident of another state, and never within the jurisdiction of the court. The principle of that decision is opposed by no case, to my knowledge, and appears to be safe and wholesome in practice; it is simply this, that when a form or mode of notice to a party, of a judicial proceeding, is prescribed by statute, and tbe party resides within the territorial jurisdiction of ihe state and court, a notice, in the mode designated is ^sufficient to give the court jurisdiction.

In the present case, the guardian of the appeJ-lant, and the appellant himself, resided in the e >unty of ■ Oayuga; the guardian was present in court, and appointed to his trust, in the progress of the proceedings, and before the order of sale was made. The record of the surrogate’s court shows, in addition to his judgment, that tlie order to show cause was published, as directed by the statute, and that evidence of its publication was laid before him. We, then, have a case where a party resided in the state, and within the jurisdiction of the surrogate’s court, where there is evidence, on the record of its proceedings, that the statutory notice was actually given, and the judgment of the surrogate that such notice was full and perfect, and in such a case, we are asked, in a collateral action, to disregard the surrogate’s judgment, and open and investigate the jurisdictional fact of publication of the notice. This we cannot do, the surrogate's judgment being, in my opinion, conclusive. (See Dyckman v. The City of New York, and cases there cited.)

I have no doubt, that the decision of the surrogate was correct, in respect to the time and manner of publishing the order to show cause. It was in accordance with the language of the statute, and there does not appear to be any reason for a different construction. The decision of the supreme court in Massachusetts, in the case of Bachelor v. Bachelor (1 Mass. 255), is directly in point, aud appears to have been better considered, and to rest on sounder reason, than the adversary opinion of our own court, in an anonymous case, involving the same question. (1 Wend. 90.) The record of the surrogate’s court also shows that the guardian had full personal notice of the proceedings, certainly, more than a fortnight, and, as will appear when the next question is examined, six weeks before the order of sale was made. But I place my opinion on neither of these last two grounds, as doing so would recognise the right of the appellant to institute, in this action, an inquiry respecting the existence of the jurisdictional fact under consideration, and thereby endanger titles fairly acquired, and encourage litigation. I place it, as has already been said, solely on the conclusiveness of the judgment of the surrogate.

The next and last subject of examination is the appointment of a guardian' for the appellant. One was duly appointed for him; but it is said, the appointment was not made, six weeks before the entry of the order of sale, and this is said, because of a slip in the caption of the order, by which the day of the month in which it was made is in blank. Without inquiring whether it was necessary to appoint the guardian six weeks before making the order of sale, and without availing myself of any presumption that the surrogate did his duty, seasonably and properly, and looking solely at the record, in connection with the accompanying facts and circumstances, for information as to the time when the appointment was made, I have no difficulty in arriving at the conclusion, that the order to show cause, and the appointment of the guardian, were made on the same day, viz., the 6th of September 1846.

In respect to the inaccurate recital of the orders of sale in the deed, the discrepancy appeared, and was corrected on the face of the deed; the error is too slight for serious consideration. The judgment should be affirmed.

Gray, J.

{Dissenting) — The first question here pre-

sented, is upon the sufficiency of the: affidavit of Aaron B. Sheldon, to confer jurisdiction upon the surrogate. The petition which it was the object of the affidavit to verify, is full and sufficient; the alleged defect is in the affidavit. That states “ that the material facts, stated in the petition, are true, according to the best knowledge and belief” of the petitioner. *The question, being jurisdictional, is not whether the surrogate erred as to the sufficiency of the proof to establish the facts stated in the petition, but whether the evidence had a tendency to establish them. The facts and circumstances upon which the knowledge and belief of the petitioner was founded, were not, as in an application for an attachment, required to be stated, and hence, the numerous cases adjudging affidavits insufficient to confer jurisdiction to issue an attachment, are not analogous, nor was the surrogate, at that time, as he is now, required to examine the petitioner on oath, touching the time and place of the death (2 B,.. S., 2d ed., 17, § 26) ; but satisfactory proof was all that was required (1 R. L. 445, § 6).

The affidavit is in. accordance with the forms in use when it was made, except that it omits the word information. (Bridgen’s Surrogate 115.) The assertion that the material facts were true, to his best knowledge and belief, very clearly implied, that he had knowledge, in which he reposed confidence, and which induced his belief in the truth of’ the facts stated.- The petition stated, that the deceased left no last will and testament, that he had heard of, or had been able to discover. This is substantially a statement, which, by the affidavit, is positively affirmed to be true; that from such examination as he had been able to make, the deceased had not left any last will and testament.'

The effort to discover a will, would scarcely have been made, except upon a clear conviction of the death of its author; besides, accompanying this petition, was the renunciation of the widow of the deceased of her right to administer, and recommending the petitioner as a fit and proper person to be appointed administrator. Whether this evidence would have been held sufficient, upon appeal, is not now material; that it had a tendency to prove the facts stated in the petition, is quite clear. The error then, if any, was mere error, and not a jurisdictional defect.

The plaintiff’s next objection is, that the petitioner, ^ *kein& nex^ kin ^le deceased, letters of administration should not have been granted to him, without first citing the next of kin to show cause. (1 R. L. 445, § 6.) The widow had renounced, and recommended the petitioner as administrator; the necessity of notice, so far as she was concerned, was superseded by her own act; the next of kin were all infants, and, therefore, not entitled to administration, and no provision was then (as is now) made in favor of their guardians. The object of the statute, in requiring citations to be issued, was to' secure administration to those who had the prior right, and might desire to claim it. When this statute was revised, its phraseology in this particular was changed, and its reason and spirit made more apparent. (2 R. S., 2d ed., 19, § 35.) I see no valid objection, therefore, to the jurisdiction of the surrogate to grant administration as he did.

We now come to the order made by the surrogate for the sale of the lands in controversy, and the question is upon the jurisdiction of the surrogate to make that order. By the statute in force when the order was made, the surrogate was required, upon the presentation of the petition for sale, to make an order directing all persons interested in the estate, to appear before him, at a day and place to be specified in the order, not' less than six, nor more than ten weeks, after the day of making the order, to show cause why sufficient of the real estate, of which the intestate died seised, should not be sold, to pay his debts; which order was required to be immediately published, for four weeks, successively, in two or more public newspapers, printed in this- state, one of which was required to be published in the paper, if any, in the county where administration was granted. In the case under consideration, the petition for the sale of real estate was presented to the surrogate of Cayuga county, who, on the 6th day of September 1826, at Auburn, made an order, directing all persons interested in the estate, to show cause before him, at his office, in Ledyard, on the 19th day of ^October following, why the real estate of the intestate should not be sold to pay his debts; this order was published in two public newspapers printed in Auburn.

The first publication in one, was on the 20 th, and in the other, on the 27th of September; in each paper, it was published four weeks, successively, but whether the last publication was before or after the 19th day of October, does not appear. The affidavits of publication were each made on the 23d of October, four days after the time appointed for showing cause. The position assumed by the defendant, and sanctioned by the court below, was, that a publication of the order for four weeks, successively, immediately preceding the day for showing cause, was all that the statute required, and that its requirements in that respect were satisfied, by a publication once in each week, for four weeks, successively, previous to the day appointed for showing cause; notwithstanding the first publication was less than four weeks prior to that day. If the position assumed be sound, a first publication on Saturday of the first of the four weeks, and a fourth on Monday of the fourth week, for the Tuesday following, would be a compliance with the law, and thus a notice, which the legislature provided should be as near six weeks, as an immediate publication of the order after it was made would make it, would be frittered into a notice of twenty-four days.

Words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification and import. (1 Kent. Com. 461.) Every word should be intended to have some force and effect (22 Pick. 573), and should be so construed, if possible, that no word should be superfluous, void or insignificant. (Hutchen v. Niblo, 4 Blackf. 148.) The words of this statute are plain. It may, however, have been impracticable to comply with its requirements by an immediate publication of the order, for the reason, that no newspaper, accessible to the surrogate, may have immediately thereafter been printed. The statute should not, for that reason, be so construed as to render the word “ immediately” ^superfluous, insignificant and void; but it should .be given, if possible, some force and effect.

The object of the legislature, doubtless, was, to secure the earliest possible publication of the order, that those interested should have as near six weeks’ notice, as the earliest practicable publication would allow. The construction given by the court below, and insisted upon here, as the true one, is precisely the same that it would have been, had the word immediately been omitted by the law-makers. It is neither allowed meaning nor . force, but by construction, is rendered insignificant and void. The order and publication were both made at Auburn; the publication should have succeeded the order, at the earliest publishing day, after the order was made. The fact that an immediate publication might have been impracticable (and whether it was or not there is no evidence) furnishes no reason for disregarding the obvious intention of the law, by omitting to secure its publication at the next publishing day. It was insisted by the defendant’s counsel, that the surrogate had adjudged upon the, evidence before him, that the order to show cause was immediately after it was made, published for four weeks, successively, and that the defect in publication, if any, could only be taken advantage of by appeal. The surrogate, it is true, in a preamble to his order for sale, recited such a publication; that, however, is no evidence of the fact. The original proof of tlie publication is the only competent evidence. (Striker v. Kelly, 2 Denio 323; Varick v. Tallman, 2 Barb. 113; Beekman v. Bingham, ante, p. 366.)

The proof of publication before the surrogate, establishes the fact, that the order was published, once in each week, for four weeks, successively, but it has not a tendency to prove that it was published immediately, or at the earliest publishing day after it was made, but proves the reverse. But concede that a publication for four weeks, successively, immediately prior to the day of showing cause would suffice, a ^publication once in each of four successive weeks, prior to that day, would not then satisfy the statute. It must have been published four weeks, and each publication should have been in the week succeeding the other. The statute in this respect is identical with that requiring the publication of notice of an order to the creditors of an insolvent (1 B. S., 2d ed., 778, § 11), except, in the one case, the publication must be six weeks, and in the other, four. In the case of the insolvent, the order was required to be published “ six weeks successively.” Under that statute, it has been adjudged, that the order should have been published the whole of -six weeks, that is during forty-two days. (People v. Yates. Com. Pleas, 1 Wend. 90.) The counsel for the defendant-referred us to Bachelor v. Bachelor, 1 Mass. 256), as bearing upon this point. The order in that case was to have been published “three weeks successively,” and all the court decided was, that a week need not intervene between each publication. The time fixed for showing cause, in that case, does not appear from the report, and hence it does not appear, whether the first publication in that case was three weeks, more or less, before the time for showing cause.

We were also referred to Roseboom v. Van Vechten (5 Denio 414), as authority for the position that an omission to publish the order as required by law, was error merely, and not a jurisdictional defect. That case did not turn upon the effect of the omission to publish as required by law, but upon the fact, that publication was made in accordance with the statute. The learned judge who delivered the opinion of the court, in that case, remarked that the omission to publish as directed by statute, would not render the proceeding void; the remark, however, is not sustained by the adjudged cases upon jurisdictional defects in this state. The object of the publication, in that case, as in the one now under consideration, was to give notice to thoe thing required to be done, Doughty v. Hope (3 Denio 249), and w^ere Powse interested in the proceeding. Notice is the essence of ther *given a magistrate, on certain conditions, to take away the right which another has enjoyed, the statute directing the course of proceeding is not directory. (Davison v. Gill, 1 East 64.) The rule upon this subject is well stated by Cowen, J., in Atkins v. Kinnan (20 Wend. 249), that “where steps are authorized by statute in derogation of the common law, by which.the title of one is to be divested, and transferred to another, every requisite, having the least semblance oj benefit to the former, must be complied withand the officer or inferior court invested with the power thus to transfer the title of one to another, must pursue with precision the course prescribed by law, or the act is invalid. (Bloom v. Burdick, 1 Hill 141, and cases there cited.) See also upon this point, Ford v. Walworth (15 Wend. 449) and Rea v. McEachron (13 Id. 465).

These cases are full to the point, that an heir shall not be deprived of his inheritance by a surrogate’s sale, unless all the requirements of the statute regulating the proceedings, are shown to have been fully complied with. Unless the word “immediately” be regarded as insignificant and virtually blotted out, there is an entire absence of evidence, that the statute, requiring an immediate publication of the order, has been complied with, literally, or according to its spirit, by a publication of the order, either immediately, or at the earliest practical day after it was made. This was the mode pointed out for obtaining jurisdiction oyer the parties interested in the inheritance; a compliance with it was indispensable to the jurisdiction of the surrogate. It has not been complied with, and the subsequent proceedings, in my judgment, 'are, therefore, void. If the statute could have teen satisfied, by a publication for four weeks successively, it does not place the defendant in any better condition, inasmuch as the publication in one of the two newspapers, was several days short of four weeks prior to the day of showing cause. (1 Wend. 90, cited above.)

If these difficulties could all be surmounted, and the surrogate helped to jurisdiction, there is no evidence, that he exercised *it on the day appointed in

the order for showing cause. If, therefore, he had jurisdiction, he lost it, by omitting to attend at the time and place specified in the order, and hearing the proofs of the administrator, and other persons interested in the estate, or then designating some other time or place for that purpose. The statute is explicit, in requiring the surrogate to either hear and examine the proofs, on the day specified in the order, or on that day to designate a time and place when he will do so. There is an entire absence of evidence, that he did either; but after a lapse of nearly two months, and on the 8th of December following, his court is opened at Auburn, where an order for -the sale of the premises in question is made.

Judgment affirmed. 
      
       See, to the same effect, Roderigas v. East River Savings Institution, 63 N. Y. 460. But the act of a clerk in the surrogate’s office, in issuing letters of administration, has not such effect; the surrogate cannot delegate the powor of deciding upon a jurisdictional fact: Roderigas v. East River Savings Institution, 76 N. Y. 316.
     
      
       See, to the contrary, Olcott v. Robinson, 21 N. Y. 150.
     