
    MORRELL a. DENNISON
    
      Supreme Court, First District ; Special Term,
    
    
      February, 1859.
    Jurisdictional Facts.—Surrogate’s Decision.
    Where the jurisdiction of a 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 a surrogate’s court, for the probate of a will—its decision, even on a quasi jurisdictional fact, such as that of inhabitancy, is conclusive, unless reversed on appeal.
    Where, after a great lapse of time, it is sought to avoid collaterally the proceedings of a 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 had no jurisdiction?—but, Was the surrogate necessarily wrong in deciding on the evidence before him that the testator was an inhabitant of his county ?
    Trial by the court.
    This action was brought by the plaintiff as administrator of one Talmadge, to foreclose a mortgage paid off some fourteen years since to the executor of the mortgagee. The principal facts were, that Talmadge, the mortgagee, died in Hudson, Columbia county, in 1841. His will made the following disposal of his property: He gave a legacy of $5000 to Philip Burrowes ; he gave one half the “ interest, income, rents, or profits” of his property to his wife, for life, in lieu of dower; the other half he directed to he applied, so far as necessary, to the support of his daughter Laura, during her minority; on her attaining the age of 21, the accumulations were to be paid over to her. On the death of his wife, the half of the estate he devised to the wife for life was also to go to Laura. If testator left any other children besides Laura, they were to participate equally with Laura in the estate; and in such case, the wife was to have a life estate in the same proportion as each child, instead of in one half. In case neither Laura nor any other child should live to attain 21 years of age, the whole property, subject to the wife’s life estate and to her legacies of $2500 each, was to go to Philip Burrowes. Burrowes was appointed executor and guardian of the children, with the fullest powers. The household furniture, horses, and carriages were given to the wife absolutely.
    This will was proved before the surrogate of Hew York, and letters issued to Mr. Burrowes. As executor, he collected the mortgage now in suit and satisfied it on record. The present plaintiff was lately appointed administrator by the surrogate of Columbia county, and now brought suit to foreclose the mortgage ; claiming that the will was fraudulent, and that the surrogate of Hew York had no jurisdiction to take proof of it or issue letters. Other facts appear in the opinion of the court.
    
      E. L. Fancher, for the plaintiff.
    
      R. H. Brown, for the defendant.
   Roosevelt, J.

This is a proceeding—unprecedented, it is believed, in our judicial records—to foreclose a mortgage not in the plaintiff’s possession, and once already paid and satisfied, and delivered up and cancelled, and so entered, more than seventeen years ago, in the books of the register’s office.

Ashbel Dennison, it appears, who is one of the defendants in this suit, on the 29th of December, 1836, executed to the late Theodore B. Talmadge a mortgage for $6000, on a lot in West-street, near Murray-street, in the city of Hew York.

Talmadge, who was a young man, a grandson of George Clinton, died about four years afterwards, on the 17th of January, 1841, at Hudson, in Columbia county, leaving this mortgage among the assets of his estate, and leaving a young widow under age and two infant children. Immediately on his death, a paper, dated April, 1839, was produced by Mr. Philip Burrowes, purporting to be the will of the deceased, making him (Burrowes) a legatee to a large amount, and sole executor and trustee of the estate and testamentary guardian of the children. An application was also made by Burrowes to the surrogate, not of Columbia county, but of New York, for letters testamentary, on the alleged ground, verified by his oath, that the deceased at the time of his death was an inhabitant of New York, that fact being necessary by law to confer jurisdiction upon the surrogate of New York.

This application was successful; but how the question of jurisdiction was disposed of does not clearly appear. The only evidence of the deceased’s, alleged residence in New York would seem to have been Burrowes’ own affidavit accompanying his petition. The letters testamentary were issued on the 28th of May, 1841. Burrowes collected the interest on the bond, and on the 20th of December, in the same year, the mortgagor paid him $1423.43 on account of the principal, all of which was indorsed on the bond; leaving a balance of $4576.57. The next day, in consideration of that sum, he assigned the securities to Hiram Walworth, clerk of the Court of Chancery, who, on the 26th of September, 1844, in pursuance of an order of that court, assigned them to David F. Randolph. Both these assignments were accompanied by an actual delivery of the bond and mortgage, and were also duly recorded. On the 19th of November, 1844, Dennison paid the balance, both principal and interest, in full, to Randolph, and received from him the securities and a regular satisfaction-piece, which was filed and entered the same day. From that day, a period of more than fourteen years, the premises remained, to all appearance, free and clear of all incumbrance, so far as respects the mortgage in question; and two loans, amounting together to $46,000, have been obtained on the faith of the register’s certificate to that effect. Burrowes remained in this country till 1854 or 1855, a period of more than twelve years, and no steps were taken to disturb his acts or to call his authority in question. It is now contended that the will was a fraudulent document, and that whether valid or not the surrogate of Hew York had no jurisdiction ; that the letters testamentary issued by him were a nullity; and that Burrowes’ assignment, as a consequence, and the satisfaction-piece which followed it were mere blank paper; leaving the mortgage, with all the arrears of interest, amounting together to over $12,000, to stand in full force, as a first incumbrance on the premises.

The law declares (2 Rev. Stats., 221, 69) that the surrogate of each county shall have “ exclusive jurisdiction” to take the proof of the wills of deceased persons, who at, or immediately previous to their deaths were “ inhabitants of the county of such surrogate, in whatever place such death may have happened ;” and that the surrogate who takes the proof of the will “ shall issue letters testamentary thereon.” That Mr. Talmadge died in Columbia county is, therefore, a point of no consequence. The question is, was he at the time, or immediately previous, an inhabitant of that county ?

His original domicil was at Hempstead, on Long Island. He there had a farm or country-seat, which, on going to Europe, he let to a tenant, declaring, it is said, at the same time, his purpose not to return to it. He remained in France a year or eighteen months, with his family. When he came back, the fair inference, I think, from the testimony, is, that he continued, after leaving the ship, for a few weeks in Hew York, looking after his real estate and his other property, of which, his sister says, Burrowes had the charge during his absence. Mr. Genet, his cousin, testifies that he came to his house in Greenbush, “ a week or two” after his arrival from France. At Genet’s he remained only “ a few days.” He then took board at a public house in Schodack, where his youngest child was born, and where he “ resided,” as Genet calls it, “ some four months,” and then removed to another public house in Hudson, and there “resided” again another four months, until he died.

The question on this evidence is not, was Talmadge actually an inhabitant of Columbia county?—but, was the surrogate of Hew York necessarily wrong in deciding, on the evidence before him, that the deceased was an inhabitant of Hew York? After the lapse of so many years, and the death of at least three most important witnesses, and the absence of another equally important, to sustain the jurisdiction, the testimony now given, as it seems to me, even if admissible, is too slight and equivocal to •overthrow the presumption which the law inculcates in favor of judicial acts. When the probate took place, Mrs. Talmadge, the widow, since deceased, was living and of full age, and, as we may infer from the citation, present in court; Mr. Taylor, the brother-in-law, also since deceased, was living and participated in the proceeding; Mr. Burrowes, now absent from the country, the executor, who propounded the instrument and swore to the residence in New York, was on the spot ready to be cross-examined, and if possible confuted ; and the two infant children were duly represented by a guardian appointed by the surrogate to watch over their interests. Mrs. Talmadge, too, although she considered the will, as well she might, to be a most unjust disposition of her husband’s estate, took no steps during the many subsequent years of her life to call the probate in question, either by appeal or in any other mode ; and for aught that appears—and the inference after the lapse of so many years is a legitimate one—accepted from and through Burrowes, as the duly appointed executor, the provision made for her by the instrument which he called, truly or not, her husband’s will.

All these circumstances, and more might be specified, although in the view now taken not technically conclusive, are sufficient to counterbalance the loose evidence to which I have referred, given after the lapse of eighteen years from the date of the transaction. It might well have been that the deceased, “ immediately previous to his death,” had a temporary lodging-place in the city of New York, as well as in the city of Hudson, without being permanently settled in either or anywhere else— an inference which is strengthened by the fact that immediately after his death his family are found living in New York.

As matter of fact, therefore, the court I think, under the circumstances, is justified, if necessary, in finding that the deceased, within the meaning of the statute, was an inhabitant of the city of New York—sufficiently so, at least, to give the surrogate jurisdiction.

I should say, however, that I am not prepared to admit that such a finding is necessary to sustain the defence. Where the jurisdiction of a subordinate tribunal, having cognizance of the general subject, has attached, by the presentation of a verified grima facie case and by the appearance of the parties, its decision, even on a quasi jurisdictional fact, such as that of inhabitancy, must be conclusive, unless reversed on appeal. To allow it to be called in question collaterally, and on every occasion and during all time, would be destructive of all confidence. 3STo business in particular depending on letters testamentary or of administration could be safely transacted. Payments made to an executor or administrator, even after judgment, would be no protection. Even if the debtor litigated the precise point, and compelled the executor to establish it by proof, the adjudication would avail him nothing, should a subsequent administrator, as in this case, spring up, and, after the lapse of the fifth of a century, demand payment a second time, when a scintilla of evidence on one side remained, and all on the other had perished. A large number of titles, too, depend for their validity on decrees of foreclosure, and these decrees are often made in suits instituted by executors or administrators, or their assigns. Must these, too, be subject to be overhauled at any period, however remote, on the nice question of residence?—a question often difficult to decide where the facts are clear, and much more so, of course, where the facts are obscured by lapse of time and loss of documents and witnesses.

The doctrine contended for by the plaintiff, and indispensable to his success, is, I think, altogether too dangerous for judicial sanction.

The complaint, therefore, on that ground, as well as on the mere issue of fact, should be dismissed.  