Clocke v. Igglesden

The Surrogate. Mr. Clocke was the attorney for the plaintiff in the action of Igglesden v. Igglesden, and he is also the attorney who conducted throughout [342] the proceedings for the sale of the real estate in this matter. He presents to me now the question as to whether my duty under the statute will permit me to obey the order made by a superior court. I have the greatest possible respect for the court which the learned judge who granted' the order adorns, and should cheerfully obey any proper direction it might give, but this, I apprehend, is an independent, though- inferior, tribunal. It ought not to be interfered with while engaged in the discharge of its proper functions by any court, however exalted. When it has completed its duties by making an order or final decree in any matter, its doings may be reviewed and its action reversed or affirmed on appeal; but I think the Supreme Court has no more power to order what I shall do in a pending proceeding than a county judge has to send an order to a justice of the peace commanding him to admit or reject evidence or directing what judgment he shall render in a case pending before him. (See Wright v. Fleming, 19 N. Y. Supm. Ct., (12 Hun.), 469.) I am fully aware that -judges, in the mass of matter presented for their action, find it impossible to read and consider all the affidavits and other papers presented to them. Many orders are granted by them at the risk of the counsel applying, and they do not hesitate, when their attention is called to their illegality or impropriety, to revoke them promptly. In this case it seems to me the attorney should, in the first instance, have applied to me by petition, on the day fixed for distribution, to insert in the decree a direction that the costs in the action should be paid [343] out of the surplus. If, on such application, the court erred in its decision, the error could have been corrected on appeal. I know of no other way by which errors of Surrogates’ Courts can be corrected. But he was not then in a position to make such application, as his costs were not taxed till the 1st May, while the decree was entered twenty days prior thereto. At the last mentioned time (April 10th), he drew the order establishing claims, and the consent of the widow to accept a sum in gross, and partly prepared the decree of distribution, which was finished by me. Then was the time for him to have presented his claim, if any, but there was none then existing, at least in a tangible and liquidated shape. Indeed, in the petition presented, which contained a prayer for the sale of the premises, no mention is made of the claim in question. The proceeding in this matter had gone through all its stages to a final decree of distribution before the court heard of this claim and twenty days before his costs were taxed or judgment docketed. The various sections of the statute affecting the question provide, substantially, as follows: 2 R. S., 105, § 31, that the sale passes all the title and interest of the deceased at the time of death;. § 32, that every sale and conveyance shall be subject to all charges, by way of judgments, mortgages or otherwise, upon the lands sold existing at the death of the owner; § 35, that the proceeds of sale be paid to the Surrogate; § 36 directs him to pay the charges and expenses of sale and to satisfy any claim of dower; § 38, that he pay debts of deceased, and § 43, that he distribute the surplus among the heirs or ‘ devisees or the persons [344] claiming under them. Hence, under this last provision, if any person had at the time of the sale held a mortgage, judgment or other claim which was a lien upon the share of any one or more of the devisees, he would have claimed under him or them, and could have claimed the share or shares of such devisee or devisees in the surplus. Here, however, as before remarked, the claim in question did not exist at the time of the sale nor on the day of distribution; no judgment had been docketed: and Mr. Clocke, notwithstanding the award of costs in the suit for construction of the will, had no lien which he could at either of these times assert. (Sears v. Mack’s Assignees, 2 Bradf., 394). In respectfully declining, for these reasons, to obey the order of the Supreme Court, I am gratified to think Mr. Clocke is not without ample remedy. A portion of the real estate of the deceased, of the estimated value of $2,500, remains unsold, and upon it his judgment is, doubtless, a lien.* Footnotes [*] On the return of an order to show cause in the Supreme Court why the Surrogate should not be punished for disobeying its order, the court held that it had no power to interfere with the Surrogate in the matter, and the application was dismissed.