In Re the Estate of Patterson

Finch, J. Upon the death of the intestate, letters of administration were granted to Patterson as liea* surviving husband. *330 They issued upon his petition asserting that relation as his, title and the foundation of his right, but without notice to the next of kin, or any appearance by them. At a later period he filed his account, and the same was settled by the surrogate awarding payment of the whole surplus to him as-husband. Thereafter the next of kin filed a petition, alleging that he was never in any manner married to the deceased, but had obtained the whole estate by the false assertion of a husband’s right, and asked to have the decree on the accounting and for distribution vacated and set aside, and that the assets in the hands of the administrator be paid over by him to the next of kin. = The surrogate determined, and the evidence before him fully justified the conclusion, that Patterson was-not and never had been the husband of the intestate, but lived with her only in a meretricious relation, and that, therefore, the letters of administration and the decree for distribution were each obtained by fraud and falsehood and should be revoked and vacated. An order to that effect was entered, but on appeal to the General Term so much of it as revoked the letters was reversed for the sole reason that the procéeding was not framed for such relief. The vacating of the decree for disti’ibution was affirmed, and it is now said that such affirmance was error, because the unrevoked letters were conclusive proof of Patterson’s title as husband and must uphold the decree of distribution until themselves vacated in a proper-direct proceeding. That presents the sole question on this appeal. The appellant’s argument is that the next of kin claim under and in affirmance of the order appointing Patterson administrator and cannot, therefore, at the same time, attack it collaterally. But they do not attack it at all. They admit and recognize the authority of Patterson as administrator, and concede that the order unrevolced is conclusive proof of that authority. The Code gives such effect to the-order, and, admitting its force, they ask that the lawful, administrator make an honest and lawful distribution. There-is no inconsistency in their position, for the order is not conclusive upon the reasons and facts, not jurisdictional, which. *331 led to it as against parties not cited, not appearing, and who have in no manner been heard in respect to them. The'order does not fall, is not revoked, or even shaken in its authority by proof in the proceeding for distribution that Patterson never was, in fact, husband. There is no estoppel which goes behind it and makes the reason which led to it a fact conclusively established in a case where the next of kin were neither notified nor appeared. A creditor may be appointed where it appears that there is no next of kin. On his accounting can it be that the next of kin actually existing may not assert their right to distribution and contest the validity or amount of the creditor’s debt? For them the question who shall distribute may be quite immaterial and induce a waiver of the prior right which might be enforced, but such waiver would be fatal if by it the question to whom distribution should be made is finally foreclosed. I can see no reason for such a doctrine. There is no attack upon the order granting the letters either collateral or direct. On the contrary, it may stand consistently with the relief asked. ¡None of the cases cited by the appellant establish the doctrine for which he contends. Most of them were obviously cases in which the relief sought necessarily required the vacating or destruction of the prior order as in Hankin v. Turner (L. Rep. [10 Ch. Div.] 372), in which the suit was for administration, and the relief involved a vacating of the order of the Probate Dixdsion. Porter v. Purdy (29 N. Y. 106) states the familiar rule that an adjudication cannot be destroyed by a mere collateral attack. In Caujolle v. Ferrié (13 Wall. 465) there was a judgment of a, state court in a suit for administration involving the question who was next of kin, in which all parties had been heard, and it was held conclusive. In the Roderigas case (63 N. Y. 460) it xvas a jurisdictional fact xvhicli was sought to be disproved to the necessary destruction of the order founded upon it. Here no jurisdictional fact xvas' assailed, nor was the order’ founded upon it attacked or questioned. In Bolton v. Schriever (135 N. Y. 65) the plaintiffs in ejectment claimed *332 as heirs at law and could only succeed by annulling the pro-hate of a will carrying the estate elsewhere, and sought to do so by contradicting the fact of inhabitancy. Obviously none ■of these cases furnish the rule in the one before us, for here the order may stand, and is left to stand, consistently with the relief granted. What is said as to the conduct of the next of kin in so long postponing their attack will assume importance if the sureties of Patterson are sued, but is at present immaterial. We see no reason for disagreement with the General Term and its order should be affirmed, with costs. All concur. Order affirmed.