Proctor v. Wanmaker

The Chancellor. The grant of administration to the public administrator in September, 1844, was clearly irregular, and should have been set aside by the surrogate. The statute is imperative, that if the property of the intestate exceeds the value of $100, the public administrator shall serve a personal notice, upon the. widow and the relatives who are entitled to any share of his estate, if there be any to be found in the city of NewYork, of his intention to apply to the surrogate for letters of administration. And in all cases where the notice shall not have been personally served, it shall be published for four weeks. (2 R. 8. 121, § 16, 17.) The affidavit of Butler was therefore insufficient, upon its face, to entitle the public administrator to the grant of administration. For it there appeared that the citation was not served personally upon Oran, one of the sons of the decedent, but that it was only handed to his brother George for him. It is true, Butler now swears that he could not ascertain his residence, after diligent inquiry. But he should have ‘ [306] stated the fact,' that he had made such inquiry, in' his former affidavit; and the public administrator should have then produced evidence that he had published the notice, in a newspaper in the city of New-York, for the time prescribed, by the statute. Again: I am satisfied, from the evidence stated in the surrogate’s réturn, that the citation which was returnable in September, 1844, was never in fact served upon the widow,, and that she knew nothing of 'its contents until after the administration had been granted to herself and Andrew. She swears that she had no knowledge that such a citation had been issued, previous to that time. Helen M. Proctor also swears that all the citations annexed to her affidavit, were delivered to her, and that none of them were delivered to her mother; that when the citations were thus served on her by Biitler, he remarked that he supposed they ought to be served personally, but that he presumed it would make no difference. And she produces the citations thus served upon her, one of which is directed to her brother Oran, one to herself, one to her mother “ Elizabeth Proctor, widow of, Amos Proctor, deceased,” and one to each of her sisters, Lucy and Elizabeth. She also states that supposing they related to the letters ad colligendum which she and the family had consented should be granted to the public administrator, she did not deliver them to the persons to whom they were addressed, and for whom they were intended, but placed them among other papers belonging to the estate. And she is fully supported in this statement by the affidavits of her brother-in-law, and of one of her sisters, who were present when the citations were delivered to her. Butler therefore is undoubtedly under a mistake in supposing that this was a personal service upon the widow, or the other members of the family who rvere not cognizant of the contents of the papers delivered to Helen M. Proctor. ■The provisions of the third subdivision of the 31st section of the title of the revised statutes relative to public administrators, (2 R. S. 124,) appear to have been intended to reach the case of a regular grant of administration, to the public administrator, in relation to property in the city of NewYork, where the intestate was an inhabitant of some other cdunty'in this state at the [307] time of his death; so that the surrogate of such other county had the exclusive right to grant general administration on his estate, according to the provision of the first subdivision of the 23d section of the title of the revised statutes relative to granting letters testamentary and of administration. (2 R. S. 73.) In that case it will be perceived that, by the provisions of the title relative to public administrators, the surrogate of New-York is authorized to grant letters of administration to the public administrator where the decedent has left goods in the city of New York, or where goods belonging to his estate have afterwards come there. But, by the provisions of this 31st section, in all such cases of regular administration granted to the public administrator, if letters testamentary had been, or shall thbre-. after be, granted to an executor of the decedent’s will, or if the surrogate of the proper county had already granted letters of administration upon the estate of the decedent, or shall grant •such letters within six months thereafter, the powers of the public administrator are to be superseded. And the 32d section was intended to provide for the case where the surrogate of New York had jurisdiction to grant letters of'administration, to the widow or next of kin, but -where such widow or next of kin had not appeared and opposed the granting of administration after a notice had been regularly published; because the widow and relatives did not reside in the city, or because the fact of their residence therein was not known to the public administrator, so' as to require him to serve them personally with a notice." Neither of these sections, however, were intended to deprive the widow, dr next of kin, of the right to have the grant of administration to the public administrator vacated and set aside, for the irregularity, where it had been improperly obtained, without complying with the directions of the statute on that subject; although the application for that purpose was not made within the time limited by those sections, in cases where all the proceedings of the public administrator had been correct and regular. Here the application to the surrogate was made, by the widow, within six weeks after she discovered that administration had [308] been granted to the public administrator; and as soon as she found that he intended to contest the right of the appellants to the administration of the estate. The surrogate should therefore have granted that application ; and should have revoked and annulled " the letters which had been irregularly granted to the public administrator, upon the false or mistaken affidavit that the citation had been personally served upon the widow of the decedent, who was known to be living in the city of New-York. Independently of the statute of 1837, the surrogate was authorized to call in and revoke letters of administration which had been irregularly and improperly obtained, upon a false suggestion of a matter of fact, and without due notice to the party rightfully entitled to administration. (Cornish v. Cornish, 1 Lee’s Ecc. Rep. 14; Burgis v. Burgis, Idem, 121; Oglevie v. Hamilton, Idem,, 357; Smith v. Cary, Idem, 418; Lord Trimlestown v. Lady Trimlestoion, 3 Hagg. Ecc. Rep. 243.) As the grant of administration to the public administrator was irregularly obtained, and must be revoked, it is unnecessary to consider the question whether it is necessary to give him notice, -where the widow or next of kin apply for administration within the three months after a regular grant of administration has been made to him. The decretal order of the surrogate must be reversed; and a decree must be entered setting aside and revoking the letters of administration granted to the public administrator, as irregularly and improperly obtained, without due notice to the widow and some of the next of kin. And the letters of administration granted to the appellants must be declared to be valid. The respondent must also be directed to deliver up to the appellants, as the rightful representatives of the estate of the decedent, all the moneys, books, papers and property which have come .to his hands.