Rose v. Lewis

— 323 — By the Court — Talcott, J. Without considering the effect of the former adjudications between the plaintiff and the administrators, in the actions commenced by the plaintiff against them, as administrators, to recover the debts which this suit is instituted to recover, and in which, whether necessary in those actions or not, substantially the same issues which are presented in this action seem to have been made and decided against the plaintiff, I think the final accounting and discharge of the administrators before the surrogate of Oneida is a bar to the present action, if the plaintiff was made a party thereto by such service of the citation as the statute prescribes. - The statute itself declares that such final accounting shall be conclusive, as to certain questions, upon all those who have been made parties in the manner provided by the statute. (2 R. S., 94, § 65.) Among the things which the statute declares shall be deemed concluded by the determination of the Surrogate’s Court on the final accounting, is the fact that the charges made in such account for moneys paid to creditors are correct. Thei’e is no finding in the case that the proceedings upon this final accounting were fraudulent as against the plaintiff", nor does the complaint, although it alleges the final accounting, contain any allegations touching the manner in which it was procured sufficient, if true, to enable a court of equity to set it aside as fraudulent and void, as against the plaintiff; and the judgment which has been entered in the case, while it proceeds formally to set aside and declare null and void for fraud the order made by the surrogate, on the application of defendant Lewis, that the administrators pay the judgment in his favor, yet leaves the judgment or determination of the surrogate upon the final accounting wholly intact, and in full force and effect. The gist of the complaint in this action is, that the judgment which the defendant, Lewis, held against the intestate was without consideration, originally recovered by collusion with the intestate and to defraud his creditors, and subsequently kept on foot for the same purpose; and that the same — 324 — was fraudulently and eollusively paid out of the assets by the administrators, well knowing that it constituted no just claim against the estate. This is clearly a matter which might, and ought to have been, litigated before the surrogate upon the final accounting; and the plain intent of the statute is, that the final judgment, of the Surrogate’s Court, so long as it remains in force, shall be conclusive upon such questions of fact as are sought to be litigated in this case. The determination of the Surrogate’s Court, that the payments claimed by the administrators are correct, is, not only that the moneys claimed to have been paid on debts and legacies have in fact been made, but also that they have been properly and lawfully made; otherwise the final accounting would be a very idle ceremony, and form no substantial protection to the administrators against any number of future litigations drawing in question the legality and validity of their acts, which it was obviously intended should be tried and determined in the Surrogate’s Court. (Stiles et al. v. Burch, 5 Paige, 132; Wright et al. v. The Trustees, &c., 1 Hoff. Ch. R., 202.) On the argument, it was orally stated, on one side, that the plaintiff in this case had not been made a party to the final accounting in the Surrogate’s Court, in the manner prescribed by the statute, which statement was denied on the other side. On looking into the case, it does not appear that this question was at all litigated or received any attention on the trial. . It was claimed, on the argument, that the plaintiff) being a resident of the county of Oneida, before the surrogate of which county the proceedings took place, was entitled to personal service of the citation. Ho direct evidence appears to have been given on the question of the plaintiff’s residence; but that he was a resident of Westmoreland, which is. in Oneida county, perhaps sufficiently appears incidentally in the testimony. Probably the residence of the plaintiff was well known to the referee and all the other parties engaged in the trial, and was assumed. The only proof touching the publication and service of the citation is that to be found in the records of the proceedings — 325 — before the surrogate which was introduced in evidence, and so far as relates to this question it is as follows : 1. A petition of the administrator and administratrix for a final settlement and accounting, addressed to the surrogate of Oneida, and duly verified, bearing date June 4, 1864. 2. The surrogate’s order of the same date, that a citation issue to all persons interested in the estate of Hezekiah K. Wilgus, to attend the final settlement of the accounts of the administrators of the estate of the deceased on the 26th day of July, 1864, at Utica. 3. The citation of the same date, in the proper form under the seal of the Surrogate’s Court, returnable according to the order. 4. An affidavit of the publication of. the citation once in each week for four successive weeks, commencing June 10th, 1864. (I assume the publication to have been of the citation. The affidavit calls it an advertisement of which a copy is annexed, but the paper annexed does not appear.) 5. An affidavit that the deponent is acquainted with the several persons whose names purport to be subscribed to the annexed admission of service of citation, and that the signatures are genuine. (Here, as in number four, the paper annexed to the affidavit is not contained in the case, so that we do not see what the admission was or by whom signed. The missing paper would probably set at rest any dispute on the subject.) 6. An order of the Surrogate’s Court made September 12th, 1864, reciting that the administrators had rendered their account and referring it to an auditor to examine and report therein. 7. The minutes which give the dates of the various proceedings and adjournments, containing under date September 12th, 1864, “ administratrix and administrator appeared and made proof of service and publication on citation.” 8. The auditor’s report stating the account and crediting the administrators with the sum of $11,334.68, as paid on — 326 — the judgment in favor of the defendant, Lewis, which is in question in this case. ■ 9. The final and formal decree of the surrogate reciting the previous proceedings, and stating that the administrators appeared on the return of the citation and made proof of the due service and publication of the citation, and stating the account, giving credit to the administrators for the amount paid on the Lewis judgment, and adjudging that the proceedings of the administrators in the settlement of the estate be confirmed, and adjudging that they have “ fully and faithfully administered the personal estate ” of the decedent, except as to the sum of $200, which by the decree they are directed to retain for the purpose of paying certain costs by them incurred, and adjudging that they pay over to Lewis any balance of the $200, which may remain after the payment of such costs to apply on his judgment. It is a well settled doctrine, says the court in Barber v. Winslow (12 Wend., 102), that the record of a court of special and limited jurisdiction which contains allegations of facts, showing jurisdiction in the particular case, is per se sufficient to uphold the judgment until the contrary is shown. In this case it does not appear to have been disputed on the trial, but that the plaintiff in this action was duly and according to the statute cited to appear before the surrogate on the final accounting; and I think, within the doctrine laid down in Barber v. Winslow, the decree of the surrogate is prima facie evidence of the fact. If so, the plaintiff was a party to that proceeding, and is bound by the decree, which is the adjudication of a competent court upon the very matter sought to be again litigated in this action. I think the final decree of the surrogate is a bar to this action not only in behalf of the administrator and administratrix, but also as to the defendant, Lewis. His liability is, so to speak, secondary, that is, it depends upon the question whether the administrators are liable upon the alleged fraudulent devastavit. It is through, and based upon, the alleged — 327 — liability of the administrators that the-plaintiff claims to recover back the money which he alleges they fraudulently paid to Lewis on his judgment. Moreover, Lewis was, by means of the citation, a party, to the same proceeding. His rights are adjudicated by the same decree, which is binding also upon him. As the question as to the effect of the final accounting seems to have received little or no attention on the trial or from the referee, and it may be that the case does not disclose the actual facts concerning the service of the citation, instead of a mere reversal of the judgment, a new trial should be ordered, costs to abide the event. Judgment reversed and new trial ordered, costs to abide the event.