
    BOLTON v. SCHRIEVER.
    
      N. Y. Court of Appeals ;
    
    October, 1892.
    
      1. Former adjudication; decree of S2irrogate.\ A surrogate in admitting a will to probate and issuing letters testamentary to the executor, in effect decides that the testator at the time of his death was an inhabitant oí the surrogate’s county, and if .such decision is based on any evidence having a legal tendency to support it,—e.g., an allegation of the fact in the verified petition for probate,—it cannot be attacked collaterally, but must stand until it is reversed or set aside.—So held, as to a will admitted to probate in 1841, prior to the enactment of L. 1870, c. 359, and Code Civ. Pro. § 2473,—providing, in substance, that when a decree or other determination of a surrogate is drawn in question collaterally, the jurisdiction of the surrogate in absence of fraud, is conclusively established by an allegation of jurisdictional facts in the verified petition used in the surrogate’s court.
    2. Cases overruled a.2id distinguished^ Bolton v. Jacks, 6 Robt. 166, overruled; and Roderigas v. East River Savings Institution, 63 N. Y. 460, distinguished.
    3. Costs; additional allowances.~\ Upon a second trial of an action of ejectment under Code Civ. Pro., §1525, granting a second trial as of course upon payment of costs, the successful'party may be allowed an extra allowance, notwithstanding he was also successful on the former trial, and an extra allowance had been granted him on that trial.
    Wing v. De La Rionda, 131 N. Y. 422, followed.
    Appeal from a judgment of the General Term of the Superior Court of New York City affirming a judgment in favor of defendants, entered upon a verdict directed by the Trial Court, and from an order of such General Term affirming an order of the Trial Court granting •defendants an extra allowance.
    Action of ejectment, brought by C. Gray Bolton and ■others against William Schriever and others. The plaintiffs claimed the property in question as the heirs-at-law of Theodore B. Tallmadge, who died in January, 1841, and the defendants claimed title through the will of said Tallmadge, which was admitted to probate in May, 1841, by the surrogate of the county of New York.
    
      At the trial (which was the third trial of the action) defendants offered in evidence an exemplified copy of the record of the surrogate’s court admitting the will of Tallmadge to'probate. Plaintiffs objected to the evidence upon the ground among others that it did not appear from the record that there was any evidence given on the probate of the will to show that Tallmadge was an inhabitant of New York County at the time of his death, and the surrogate therefore acted without jurisdiction; and that the order admitting the will to probate contained nothing to show that the surrogate passed upon the question of the inhabitancy of testator. The court overruled the objection and plaintiff excepted. The plaintiff also gave evidence in rebuttal tending to show that Tallmadge was not an inhabitant of New York County at the time of his death. At the close of the evidence upon defendant’s motion the court directed a verdict in their favor on the ground that the probate of the will, under which they claimed, could not be assailed collaterally in this action.
    
      The General Term, upon plaintiff’s appeal, affirmed the judgment of the trial court without opinion.
    [Mem.—Reported in 16 N. Y. Supp. 958 ; for report, on former appeal, see 58 Super. Ct. 520 ; s. C., 26 Abb. N. C. 230.]
    The plaintiff appeals to this court.
    The further facts are fully stated in the opinion.
    
      
      Edward C. Perkins (Smith & Perkins, attorneys), for appellants.
    I. The surrogate by the statutes in force at the time the will was proved had no jurisdiction to prove the will of an inhabitant of another county (citing L. 1837, c. 430, § 1 ; 3 R. S. c. II, tit. 1, § 11.)
    II. The surrogate had no jurisdiction to decide whether the testator was an inhabitant of the county of New York, as the statute under which the will was probated did not impose upon the surrogate the duty of determining that fact; the case of Roderigas v. East River Savings Institution (63 N. Y. 460) is to be distinguished on this ground (citing L. 1837, c. 350, § 1; 2 R. S. 74, § 23). The criticism of the Roderigas case by other courts is due to the fact that the peculiar language of the statute under which it was decided was overlooked (citing Thomas v. People, 107 Ill. 517; Devlin v. Commonwealth, 101 Pa. St. 273; Lancaster v. Washington Life Ins. Co., 62 Mo. 121; Lavin v. Emigrant Bank, 18 Blatchf. at p. 5 [per CHOATE, J.] ; 21 Alb. L. J. 65 ; 22 Id. 231; 10 Am. Law Reg. 787 ; Melia v. Simmons, 45 Wis. 334; Redfield on Surrogates, 48, 49 n. (1); Jochumsen v. Suffolk Savings Bank, 3 Allen, 87 ; Holyoke v. Haskins, 5 Pick. 20; Same v. Same, 9 Id. 259 ; Nimmo v. Stewart, 21 Ala. [N. S.] 682; Morgan v. Dodge, 44 N. H. 255 ; Cutts v. Haskins, 9 Mass. 543 ; Griffith v. Frazier, 8 Cranch, 9.)
    III. Prior to statutes prohibiting collateral attacks on decrees of courts of probate, they were open to collateral .attack as to whether the court had jurisdiction as limited by locality (citing Taller on Ex’rs. 1st ed. pp. 89, 90 ; Blackborough v. Davis, 1 P. W. 42 ; Prince’s Case, 5 Rep. 30 ; Noel v. Wells, I Lev. 235 ; 1 Williams on Ex'rs, 6th Am. ed. 631; Bac. Abr. tit. “ Void & Voidable,” B; 11 Vin. Abr. 73 (Exrs. F.); Crossman v. House, Noy, 96; Allen v. Andrews, Cro. Eliz. 283 ; 20 and 21 Vict. c. 77, :§ 62 ; Cutts v. Haskins, 9 Mass. 543 ; Holyoke v. Haskins, 5 Pick. 20; Same v. Same, 9 Pick. 259; Northampton v. Smith, 11 Met. 395 ; Pinney v. McGregory, 102 Mass. 
      189; Emery v. Hildreth, 2 Gray, 228 ; Mass. Gen. St. c. 117, §4; Cooley Const. Law. 6th ed.p.493; Vose v. Morten, 4 Cush. 27 ; Boom Co. v. Patterson, 98 U. S. 405 ; Rose v. Himely, 4 Cranch, 268 ; Thompson v. Whitman, 8 Wall. 460; Ferguson v. Crawford, 70 N. Y. 253; Boller v. Mayor, etc., 40 Super. Ct. 523; Chapman v. Phenix Nat. Bank, 44 Id. 340).
    IV. The probate is void because it appears that the surrogate had no evidence before him as to inhabitancy and did not adjudicate upon the question.
    V. Two extra allowances cannot be granted in the same case (citing Flynn v. Equitable Life Ins. Co., 18 Hun, 212; Bank of Mobile v. Phœnix Ins. Co., 8 Civ. Pro. 212; Brewer v. Penniman, 72 N. Y. 603 ; McDonald v. Mallory, 46 Super. Ct. 58).
    
      Edward W. S. Johnston (Johnston & Johnston, attorneys), for respondents.
    I. The decree of the surrogate admitting the will to probate cannot be attacked collaterally. The case of Bolton v. Jacks (6 Robt. 166), on which plaintiffs rely, has been disapproved and overruled (citing Roderigas v. East River Savings Institution, 63 N. Y. 460; 76 Id. 321; Boller v. Mayor, etc., 40 Super. Ct. 523 ; Monell v. Dennison, 8 Abb. Pr. 401 ; Bolton v. Brewster, 32 Barb. 389; Bumstead v. Read, 31 Id. 661; People v. Judges of Dutchess County Common Pleas, 20 Wend. 658 ; Anderson v. Anderson, 112 N. Y. 104; Estate of Hamersley, 9 Civ. Pro. R. 293 ; Kelly v. West, 80 N. Y. 139; Harrison v. Clark, 14 Weekly Dig. 134; Matter of Harvey, 3 Redf. 214; Gilman v. Tucker, 28 State Rep. 587 ; Matter of Kellum, 50 N. Y. 298).
    II. The evidence given by plaintiff goes merely to contradict the evidence submitted by the verified petition before the surrogate; the decree cannot be attacked collaterally in such a manner (citing McCarthy v. Marsh, 5 N. Y. 265 ; Porter v. Purdy, 29 Id. 106 ; People v. Stephens, 51 How. Pr. 235 ; Matter of Buckley, 41 Hun, 106 ; Donnelly v. Libby, 1 Sweeney, 279; Lewis v. Dutton, 8 How. Pr. 103; Skinnion v. Kelley, 18 N. Y. 355; Sheldon v. Wright, 5 Id. 497; Archer v. Furniss, 4 Redf. 88; Rusher v. Sherman, 28 Barb. 416 ; Kinnier v. Kinnier, 45 N. Y. 535 ; Staples v. Fairchild, 3 Id. 41; Chapman v. Phenix Nat. Bk., 44 Super. Ct. 340 ; Power v. Speckman, 37 State Rep. 474; O’Connor v. Huggins, 113 N. Y. 512; Martin v. Robinson, 38 Western Rep. 550; Matter of Wagner, 119 N. Y. 28 ; Erwin v. Lowry, 7 How. U. S. 172 ;, Sargeant v. State Bank of Indiana, 12 Id. 386 ; Fisher v. Bassett, 9 Leigh, 119 ; Andrews v. Avory, 14 Gratt. 229 ; Abbott v. Coburn, 28 Vt. 663; Burdett v. Silsbee, 15 Tex. 604; Guilford v. Love, 49 Id. 715 ; Johnson v. Beazley, 65 Mo. 250 ; Dequindre v. Williams, 31 Ind. 444; Erwin v. Lowry, 7 How. U. S. 172 ; Shroyer v. Richmond, 16 Ohio St. 455 ; Rigney v. Coles, 6 Bosw. 479 ; Coursein’s Case, 3 Gr. Ch. 408; Smith v. Hilton, 50 Hun, 237; Nelson v. Yates, 37 Id. 52; Horne v. Rochester, 62 N. H. 348; Devlin v. Commonwealth, 101 Pa. St. 273 ; Cummings v. Hodgdon, 16 Northeast Rep. 732; Dyckman v. Mayor, etc., 5 N. Y. 434; Grignon’s Lessee v. Astor, 2 How. U. S. 319; Haggart v. Morgan, 5 N. Y. 422; People ex rel. James v. Surrogate of Putnam County, 21 Weekly Dig. 498 ; S. C., 36 Hun, 218 ; Lange v. Benedict, 73 N. Y. 12; Savacool v. Boughton, 5 Wend. 170; Matter of Cordova, 4 Redf. 68 ; Carroll v. Hughes, 5 Id. 337 ; Sullivan v. Fosdick, 10 Hun, 173 ; Louisville & N. R. R. Co. v. Chaffin, 84 Ga. 519 ; Brawford v. Wolfe, 103 Mo. 391; Shoenberger’s Estate, 139 Pa. St. 132 ; Brown v. Landon, 4 Civ. Pro. R. 11 ; S. C., 30 Hun, 59; Goldtree v. McAlister, 23 Pac. Rep. 207 ; Robinson v. Epping, 4 Southern Rep. 812 ; Johnson v. Smith, 25 Hun, 171; Town of Ontario v. Hill, 33 Id. 250; Matter of City of Buffalo, 78 N. Y. 369; O’Connor v. Huggins, 113 Id. 511 ; Stevenson v. Superior Court, 62 Cal. 60; Devlin v. Commonwealth, 101 Pa. St. 273 ; D’Arusment v. Jones, 4 Lea, 251 ; Perkins v. Fairfield, 11 Mass. 228 ; McKindell v. Titus, 9 Heisk, 727; Lavin v. Emig. Ind. Savings Inst., 18 Blatchf. 8 ; Epping v. Robinson, 21 Fla. 36; Dodge v. Cole, 97 Ill. 357; Home Mut. Ins. Co. v. Marshall, 5 Stew. 103 ; McFeeley v. Scott, 128 Mass. 16; People ex rel. Tweed v. Liscomb, 60 N. Y. 659; Holmes v. Oreg. & Cal. R. R. Co., 9 Fed. Rep. 229).
    II. Defendants were entitled to an extra allowance notwithstanding they were allowed an extra allowance upon the previous trial of the action (citing Landon v. Von Etten, 32 State Rep. 439; Borden v. Durbrow, 3 E. D. Smith, 78 ; Safety Steam Co. v. Dickson Mfg. Co., 61 Hun, 336 ; Wing v. De La Rionda, 39 State Rep. 119 ; affirmed in 43 Id. 305 ; Arthur v. Schriever, 42 Id. 12).
   PECKHAM, J.

This is an action of ejectment to recover possession of a lot of land on Tenth avenue, between Thirty-third and Thirty-fourth streets, in the city of New York. The land belonged, at the time of his death, to one Theodore B. Tallmadge, who died in January, 1841. Mr. Tallmadge is the common source of title, the plaintiffs claiming as his heirs at law, while the defendant claims through his will, which, in May, 1841, was proved before the surrogate of the County of New York, and letters granted to the executor named therein. It is claimed by plaintiffs that Mr. Tallmadge died in the County of Columbia, and that at the time of his death he was not an inhabitant of New York County, and the surrogate of that county had no jurisdiction to take proof of the will or to grant letters testamentary thereon, and as there was no other proof of the execution of the will, the defendants made out no title to the land, and the plaintiffs were entitled to recover it as heirs at law of Tallmadge. There was a hearing before the New York surrogate and a judicial investigation, and the result was the judgment or decree, admitting the will to probate. The infant daughters of the testator appeared on this investigation by guardian appointed by the surrogate. This judgment, now over fifty years old, is assailed by the plaintiff, and if it can be successfully attacked in this collateral manner, it may follow that the defendants, by reason of this great lapse of time, will have no means of proving the will, and thus will have no defense to interpose to the plaintiffs’ claim, although they have relied upon the sufficiency of a judgment, over half a century old, decreeing that the will of Mr. Tallmadge was properly proved, and under which their mediate grantor (Mr. Tallmadge’s executor) had power to convey the land in dispute.

The petition of the executor named in the will to the surrogate of New York alleged that the deceased was, at or immediately previous to his death, an inhabitant of the County of New York, by means of which the proving of the will belonged to such surrogate.

The surrogate, in admitting the will to probate and issuing letters testamentary to the executor, in effect decided the fact of inhabitancy, for it was a fact' necessary for the surrogate to decide before admitting the will to probate or granting letters, and his decision of that fact, based upon evidence having a legal tendency to support it, ought, it would seem on general principles, to stand until reversed or set aside, even though it were erroneous.

Much of the general importance which might otherwise attach to the decision of this question is taken from it by reason of legislation upon the subject. In 1870 an act was passed which applied to judgments of surrogates’ courts in New York County, and in 1880 a similar act was passed in regard to those courts in all the other counties of the State (chap. 359, Laws of 1870; Code Civ. Pro. § 2473). These acts provided in substance that the objection to the jurisdiction of such judgments should not be taken collaterally.

We are of opinion that in a case like the present the same rule obtains which has been authoritively declared as to future cases by the statutes cited. Under these circumstances, we do not feel called upon to enter into any detailed and extended discussion of the grounds for our decision. It is unnecessary to go as far in order to uphold the decision of the courts below as the court went in the decision of the first Roderigas case (63 N. Y. 460). This case differs from that in the main and important fact that there was here an estate of a deceased person to administer upon. Mr. Tallmadge died in the State of New York, and at the time of his death he was an inhabitant thereof. In the Roderigas case letters were issued to an administrator upon the estate of a living man, but who was in ■effect declared by the judgment to be dead.

We think that where the individual died an inhabitant ■of the State, by reason of which there was in fact an estate to be administered upon, and the only question is which of the surrogates’ courts should act, there is in that case jurisdiction over the subject matter, that is over the administering upon the estate of a deceased person ■dying an inhabitant of the State, and which surrogate is to exercise such jurisdiction depends upon the fact as to which county deceased was an inhabitant of at the time ■of his death. The decision of such question, where evidence is given, and upon a hearing of the parties, ought to be, and we think is conclusive upon any collateral attack. Under our statute as to proof of wills, although it does not in terms provide that the petition shall state, or that the surrogate shall inquire and decide as to the fact of inhabitancy, yet we think the fair implication arising from a perusal of the whole statute upon the subject, is that the surrogate has power, and is bound before admitting the will to probate or issuing letters, to institute the-inquiry and to decide upon the fact of inhabitancy (Laws of 1837, chap. 460, §§ 4, 5, etc.).

As the surrogate is directed to inquire as to the names and places of residence of the heirs of the testator, the implication is a necessity that he must first inquire whether there was a testator. Within the meaning of this statute there could be no testator if there were no deceased person, neither could there be any heirs of one who was then alive. The surrogate is to take proof of these facts where the testator died an inhabitant (§ i of above cited act). He must, therefore, as part of his statutory duty, inquire as to that fact of inhabitancy before taking the proof of the will.

Another statute authorizes the surrogate to issuesubcenas and take testimony in all matters material to-any inquiry pending in his court (2 Rev. Stat. 221, §6). The duty to investigate and decide upon the fact of inhabitancy is necessarily and naturally to be implied, from the whole provisions of the statute relating to wills- and • their probate, and such duty is to be performed before the will is admitted or letters issued. If no contest is made, and there is no evidence upon the subject of the inhabitancy of the testator, one way or the other,, except the sworn allegation in the petition, 1 do not see why the surrogate may not rely upon the fact so stated. Whether, when the fact thus appears in the sworn petition addressed to the surrogate, such fact shall be resworn to by the petitioner or someone else, upon an oath administered by the surrogate himself, is matter which as it seems to us is not of a jurisdictional nature. The surrogate may regard the oath taken to the petition as-sufficient prima facie evidence, although the statute does not in terms require the fact of inhabitancy to be stated in the petition. If it be so stated and sworn to, and no-evidence is offered on the other side and no issue raised as to the truth of the allegation in any manner or form,the decision of the surrogate should be regarded as conclusive, subject only to attack by a direct proceeding to-review it. It might happen that where there is evidence pro and con, the decision would appear to be erroneous, and for that reason it ought to be reversed, but unless a. direct attack be made upon .it, the judgment should remain. This is upon the principle that the surrogate must decide upon some evidence the fact of inhabitancybefore he can go further, and when he does so decide, .although erroneously, the decision must stand until reversed.

The nature of a judgment which admits a will to probate is somewhat similar to that of one in rent. The res which the court takes into its hands for purposes of administration as representative of the State is the property which was once possessed- and owned by the ■deceased, who died an inhabitant of the State. Civilized States have for generations past recognized their ■obligations to specially protect that kind of property. That obligation arises the moment the death occurs. The ■obligation assumed has been not only that of protection of the property, but also that of the distribution thereof to those who are living and who come within the rules of law governing the subject. How great the right of testamentary disposition should be, and under what rules and regulations it should be permitted, are questions which have been differently decided by different nations and by the same nations at different times. Such rights are matters of municipal regulation. The right to inherit from, or to receive by gift under the will of, a deceased person is recognized and protected by the State, and from the fact of such recognition and protection the State owes the duty to see to it that the estate of a deceased person shall pass in accordance with the law which obtains in the State when the death occurs.

To prevent contention, and to achieve a peaceful distribution of the estate under the rules of law, and to protect the rights of the creditors of the deceased, all civilized States have created tribunals of a judicial nature whose function and duty it is to represent and exercise the powers of the State in the course of administration, and whose judgments determine the rights of the respective parties interested in the property as such rights are made to appear. The general jurisdiction over matters of this nature belongs to the State itself, by reason of its general sovereignty. The practical exercise of the jurisdiction is vested in the so-called courts of probate or surrogate’s courts.

In construing the language of the statute creating such courts, the fact must continually be borne in mind that the State is creating a tribunal or tribunals for the purpose of fulfilling its general obligations to all its inhabitants to protect and distribute according to law that which was once the property of one of their own number. That obligation is as broad as the sovereignty of the State itself. In the organization of the tribunals which are to exercise this jurisdiction, although the language of the statute may create a separate and distinct tribunal for each county in the State, and upon certain facts grant jurisdiction to one of them to the exclusion of all others, yet the facts upon which the jurisdiction is given to the court of one county instead of to another are merely incidental, partaking somewhat of the character of matters of procedure, the main fact being the actual death of an individual who at the time of his death was an inhabitant of the State. That is the jurisdictional fact upon the existence of which is founded the duty of the State to protect and distribute the property according to law.

Whether one or the other of the surrogates’ courts in the various counties shall administer upon the estate and thus fulfill the obligation which lies with the State itself, is a question which the legislature has provided for, and it depends, among other things, upon the fact of inhabitancy. This fact the surrogate to whom the matter is presented must decide, and if he decide that it exists and upon evidence which legally tends to support his decision, under such circumstances we think it ought to stand until reversed. This is believed to be the general rule. It is a matter of very trifling importance except upon the mere question of convenience, which of such surrogates’ courts shall take the proof as to the due execution of the will and grant letters testamentary thereon. For the purpose of the orderly administration of the estates of deceased persons who died inhabitants of our" State, the legislature has provided certain rules governing the subject, and has "also provided certain conditions upon which the power of a surrogate to take jurisdiction of the matter depends ; the subject matter, however, of the jurisdiction is the administration of the estates of deceased persons, and over this subject matter the State has granted to the surrogate of each county general jurisdiction. It is to be exercised upon various conditions, as was said by CHURCH, Ch. J., in the second Roderigas case (76 N. Y. 316), dependent upon the residence and the like, and the decision of the surrogate of one county after a hearing of the parties upon the question whether the case calling for the exercise of the jurisdiction of his court or the surrogate’s court of some other county exists or not, should be conclusive in all collateral proceedings. The jurisdiction to administer is bestowed upon each surrogate to the exclusion of all others where the facts exist which are named in the statute. It is granted to him, however, out of the general and complete jurisdiction resting with the State over the entire subject of administration upon the estates of deceased inhabitants, and that general jurisdiction has been exercised by the State in the creation of a tribunal in each county for such purpose of administration, and when the question of jurisdiction arises before one of such courts where the deceased died an inhabitant of the State, and the right of administration attaches to the surrogate’s court of some county, it must, in the nature of things, be decided by the surrogate before whom it comes, and, being matter incidental only in its nature, the decision of the surrogate founded upon some evidence must be conclusive even though erroneous, except upon a direct review. I am aware that much has been written by the courts of the various States upon these questions of jurisdiction of courts of probate and the conclusiveness of their judgments. Decisions both ways have been reached. Criticisms have also been made in regard to the decision of the first Roderigas case. It is not needful to refer to them or to again renew the discussion which, as to this State, was ended by the decision in that case. The question is alluded to and the various cases cited in the first volume of the Treatise on the American Law of Administration, by I. G. Woerner, § 208 et seq., and notes.

There is in the nature of things a broad distinction between the case of the granting of letters of administration upon the estate of one not in fact dead, and the granting of letters upon the estate of one who was at the time of his death an inhabitant of the State, but not of the county where the will was proved, although the Surrogate upon some evidence erroneously decided that he was.

It is quite unnecessary and wholly unprofitable to enlarge upon it here.

We do not intend by this decision to attack the principle or to shake the authority of the first Roderigas case (63 N. Y. supra), for we simply say it is not necessary to here go so far as that case goes. In the opinions delivered in the two Roderigas cases will be found much of the learning on this subject, and a citation to most of the decided cases then reported and bearing upon the question.

In this record we think it appears that there was evidence enough to call upon the surrogate of New York to decide upon the question of the inhabitancy of Mr. Tallmadge, and the surrogate, by admitting the will to probate and issuing letters testamentary, did, in fact, decide that Mr. Tallmadge was, at the time of his death, an inhabitant of New York County, and this conclusion must, in such an attack as this, be a bar to a reopening of that question. 'This view of the main issue involved in this case calls for the affirmance of the judgment.

In Bolton v. Jacks (6 Robt. 166), a contrary result was arrived at by the superior court of New York in a very elaborate and learned opinion. With many of the views therein expressed as to the right to question a judgment rendered without jurisdiction we entirely concur, but for the reasons above given, we think they are inapplicable to the particular facts of this case.

Upon this appeal the plaintiffs seek to review the •order granting an extra allowance of costs to the defendant. The ground of the appeal is that a new trial herein was taken by plaintiffs under the section of the Code (§1525) /granting such right as of course upon payment of costs, and that included in the costs which plaintiffs paid when availing themselves of the right to a new trial was the ■ amount of an extra allowance granted by the court after the former trial. The plaintiffs contend that but one extra allowance can be collected in the same action. This precise question has already been determined ■adversely to the plaintiff’s view in the case of Wing v. De La Rionda (131 N. Y. 422).

We have considered the other questions raised by the -appellants, but we do not think that any error prejudicial to them appears in the record. The whole judgment .must be affirmed, with costs.

All the judges concurred, except Gray, J., who took mo part.  