Harrison v. . Clark

Andrews, Ch. J. The decision of the surrogate of the city and county of New York, made on the 17th day of July, 1878, upon the petition of the plaintiffs, as administrators with the will annexed, of the estate of Edward Harrison, deceased, adjudging that Dawson, the former administrator, was charge *576 able, as such administrator, with the sum of $4,133.57, and directing bfm to pay over said sum to the plaintiffs as his successors,- if valid as to Dawson, was valid also as to the defendants, his sureties on the administration bond, executed on his appointment. The sureties are bound, because by their contract they are privy to the proceedings against their principal, and when the principal is concluded, they, in the absence of fraud or collusion, are concluded also. (Casoni v. Jerome, 58 N. Y. 316, and cases cited.) The decree, if otherwise valid, was properly made on the application of the plaintiffs. By chapter 733 of the Laws of 1865, on the revocation, of letters,' the superseded or removed executor or administrator may be called to account before the surrogate, on the application of his successor in the trust. The plaintiffs having been appointed administrators in place of Dawson, and taken an assignment of the bond, are entitled to enforce it for the benefit of the estate. (Laws of 1837, chap. 460, § 65; Dayton v. Johnson, 69 N. Y. 419.) We think the act, chapter 359 of the Laws of 1870, is a complete answer to the claim of the defendants, that the surrogate had no jurisdiction to make the order of March 4, 1878, superseding Dawson and revoking the letters issued t-o him, and the order of May-16, 1878, granting letters to the plaintiffs, or the decree of July 17, 1878. By the general statute, a surrogate has authority to revoke letters of administration, when it shall be made to appear, that an administrator has become incompetent to act by reason of improvidence or other causes specified. (Laws of 1837, chap. 460, § 34.) So also he is authorized, upon the revocation of letters, to grant new letters to other persons. (2 R. S. 78, § 45; Laws of 1863, chap. 466.) The act of 1870 provides (§ 1), that “the surrogate of.the county of Eew Tork shall have power and jurisdiction to issue all lawful process upon allegations duly verified, and to make and enter all lawful orders and decrees in proceedings in the Surrogate’s Court of said county, and the objection of want of jiu'isdiction shall not be taken to said orders and decrees, except by appeal in'the manner prescribed by statute, or in a proceeding to set aside, open, vacate or *577 modify the same, and the said surrogate shall have the same power to set aside, open, vacate or modify the orders or decrees of the said court as is exercised by courts of record of general jurisdiction.” It will be observed that this act applies to cases where jurisdictional defects exist in the orders or decrees of the surrogate, and the specific object of the statute seems to have been, to prevent their validity from being questioned for want of jurisdiction, except by appeal, or upon a direct proceeding to. vacate, open, or modify them. But the act does not cover a case where the surrogate had no jurisdiction of the general subject-matter, or of the party, and no right, under any circumstances, to deal with the matter to which the order or decree relates. This is the construction given to the words “lawful orders or decrees,” in the case of Bearns v. Gould (77 N. Y. 455). It is true that the jurisdiction of the surrogate- to issue letters of administration, and to revoke them, and appoint another administrator in place of an administrator who has died or been removed, is defined and limited. But if the jurisdiction has been exercised, when the facts of the particular case do not bring it within the statute, or without pursuing the particular mode pointed out, then the only remedy, we apprehend, is under the statute of 1870, by appeal or motion. The order in such case is a lawful order within the purview of the act, and the question of jurisdiction can only be raised in the way provided thereby. This view disposes of the question in this case. The surrogate had jurisdiction of the subject-matter of the removal and appointment of administrators, and to, compel an accounting by a removed administrator; and he acquired jurisdiction of the person of Dawson, by the service of citations, in the manner authorized by the law and practice of surrogates’ courts. Whether he transcended the limitations of the statute, in removing him for the cause specified, either in the order of March 4, 1878, or the amended order of December 9, 1878, or in appointing the plaintiffs in his place, or in the other proceedings, can only be considered in a direct proceeding by appeal or by motion, and the validity of the sev *578 eral orders or proceedings cannot be questioned collaterally. The sureties will be exonerated by the payment of the debt to the plaintiffs, and this is the only interest they have in the question. (See Kelly v. West, 80 N. Y. 139.) The judgment should be affirmed, with costs. All concur. Judgment affirmed.