Opinion
December Term, 1851
Wm. Porter, for appellant.
John Porter, for respondent.
This is 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 inquire whether he had jurisdiction.
First. 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 BRONSON, 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 shew 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. R. 221;) Cleaveland v. Rogers, (6 Wend. R. 438;) Powers v. The People, (4 J.R. 292;) The 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, ( ibid. 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 administration is claimed is dead, and died intestate" (1 R.L. of 1813, 445, sec. 5;) in case of an application for administration by a person not entitled, as next of kin, he shall issue a citation to the next of kin ( ibid. sec. 6;) and on granting letters of administration, he shall take bonds with two or more competent sureties, ( ibid. p. 447, sec. 10.)
These are manifestly mere directions not affecting the jurisdiction of the surrogate, and for a departure from which his proceedings would be set aside on review. ( Bloom v. Burdick, 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 oftentimes 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.
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 shew cause for four successive weeks, and,
3. The appointment of a guardian for the infants.
It must be borne in mind that the 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. R. 436;) same v. Irwin, (10 ibid. 441;) same v. Crawfords, (12 ibid. 533.)
2. Publication of order for persons interested to shew 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, he 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. S.C.R. 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.
The first 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 first 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 lead the inquirer astray.
A similar question arose and was decided at the last term of this court, in the case of Dyckman v. The Mayor, c. 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 shew 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. The Mayor, c. 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 Mayor, c. was a party to the summary proceedings, 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; but 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. The Mayor, c. is, that 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 non-appearance, the fact that the party claiming it has been served with personal or statutory notice, makes no difference. If there is 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 lies at the foundation of 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, Ch. J. said, in the case of Borden v. Fitch, (15 Johns. R. 141,) that "the want "of jurisdiction is a matter that may always be set up against "a judgment," and SPENCER, Ch. J. quoted his language with approbation in Mills v. Martin, (19 John. R. 33;) and SUTHERLAND, J. repeated it in Latham v. Edgerton, (9 Cow. R. 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 the 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 the party resides within the territorial jurisdiction of the state and court, a notice in the mode designated is sufficient to give the court jurisdiction. In the present case, the guardian of the appellant, and the appellant himself, resided in the county of Cayuga. 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 shews, in addition to his judgment, that the order to shew 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 Mayor, c. 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 shew 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. R. 255,) is directly in point, and 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. R. 90.) The record of the surrogate's court also shews 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 two last 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 shew 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.
RUGGLES, Ch. J. and GARDINER, JEWETT, McCOUN, and PAIGE, Judges, concurred.
MULLETT, J. did not hear the argument.
The first question here presented, 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. R.S. 2 d. 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, not being next of kin to the deceased, letters of administration should not have been granted to him, without first citing the next of kin to shew 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 superceded 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. 2 d. 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 shew 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 shew 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 20th, 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 shewing 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 shewing 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 shewing 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 or 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 shew 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 the publication is the only competent evidence. ( Stryker v. Kelly, 3 Denio, 323; Varick v. Tallman, 2 Barb. S.C.R. 113; Beekman v. Bigham, decided by this court at the last term.)
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 shewing 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 R.S. 2 d. 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 42 days. ( The People v. The Yates Com. Pleas, 1 Wend. 90.) The counsel for the defendant referred us to Bachelor v. Bachelor, (1 Mass. R. 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 shewing 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 shewing 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 those interested in the proceeding. Notice is the essence of the thing required to be done, Doughty v. Hope, (3 Denio, 249;) and where power is 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 authorised 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 of benefit to the former, must be complied with; and 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 and others v. McEachron, (13 Wend. 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 shewn 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 over 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 been 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 shewing 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 shewing 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.