
    In the Matter of the Estate of Louis A. Nesmith, Lily N. Anderson, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    
      Í. Executors and administrators—Powers and duties.
    Where a person appointed administrator had personal knowledge of the existence of a last will and testament of the deceased, and without calling in the aid of any court, took upon himself to pronounce the will null and void, Held, that he thereby incurred the hazard of administrating the estate as though the deceased had died intestate.
    A Same—Power or court.
    The will was afterward probated and a legacy being due by the terms thereof, and there being no part of the estate undistributed, an order was made removing the administrator and directing him to deposit the amount of the legacy with the chamberlain of New York city. Held, that the court had power to make the order.
    S. Judicial notice.
    The supreme court, general term, must take judicial notice of its own orders of a public nature.
    Appeal from an order of the special term of the common pleas, acting in place of the surrogate, directing a removed, administrator to deposit the amount of a legacy under a subsequently probated will, together with certain costs, with the chamberlain of the city of New York.
    
      G. H. Phelps, for app’lt; G. P. Smith, for resp’t.
   Macomber, J.

The learned counsel for the appellant states in his printed points that- the appeal papers do not show any facts giving the court of common pleas jurisdiction to make the order complained of. Technically, this is true; but this court must take judicial notice of its own orders of a public nature, and doing so we cannot overlook the past, that on account of the absence of the surrogate we did under Sections 3487-2488, of the Code of Civil Procedure make an order for the court of common pleas to appear and decide this, among other cases pending in the surrogates court.

Had the appellant, as administrator of the estate, paid out the moneys coming into his hands in good faith and without knowledge of the existence of the will, which was subsequently probated, the question before us would be materially different. But it is shown that he had personal knowledge-of the existence of the last will and testament of Louis A. Nesmith, and without calling in the aid of any court, he took upon himself to pronounce the will null and void, and thereby incurred the hazards of administering the estate as. though the deceased had died intestate.

The legacy being due the respondent by the terms of the. will, and there being no part of the estate remaining undistributed, the respondent would be remediless, except for the doubtful right of bringing an action against the persons among whom the appellant had distributed the proceeds of the estate, unless the court had power to make this order.

The item of costs was also properly included in the order of the common pleas. It was a mere incident in the general proceeding. The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Bartlett, J., concur.  