In re the Estate of Tabler

Main, J. On January 3, 1975 Dominick Viscardi offered for probate an instrument which was allegedly the last will and testament of Portia R. Tabler. Pursuant to the order of the Essex County Surrogate, Viscardi executed service on all unknown distributees by publication. On the return date authorizations of attorney, an affidavit of heirship and objections to probate were filed on behalf of the appellants, who claimed to be the children of the decedent’s only child. The court refused to order service of supplemental citations upon appellants, stating: "until it is established that Franklin D. Tabler and Darlene T. Bichen, are in fact distributees of Portia R. Tabler, they have no standing to file objections to the probate of the Will of Portia R. Tabler, deceased”. A hearing scheduled to determine the issue of whether appellants were distributees was adjourned until December 3, 1975. In the meantime the appellants applied to the Supreme Court of Columbia County, by way of a motion for declaratory judgment, for that court’s judicial determination of the very issues then pending in the Surrogate’s Court of Essex County. Neither of the defendants therein was a party to or had any interest in the probate of Portia R. Tabler’s will and, upon their default, appellants obtained a judgment declaring that Darby R. Tabler (decedent’s child) and Eleanor C. Tabler had contracted a valid common-law marriage in another jurisdiction, that the appellants were the issue of that marriage and that the marriage was valid in New York at the time the appellants were born. At the December 3rd hearing, after a motion for disqualification of the Surrogate was denied, appellants called one witness, asked the court to take judicial notice of the said Columbia County Supreme Court decision and then rested. After hearing argument, the court refused to take judicial notice and asked appellants if they desired to reopen their case. Appellants declined and, subsequently, the decree appealed from was issued. The appellants raise several issues, none of which have merit. They contend that, as "[grandchildren who are the only living relatives of a decedent”, they were necessary parties to the probate proceeding. The real issue, however, is not whether grandchildren must be cited, but whether the appellants are grandchildren. The Surrogate correctly deterr mined that he was empowered to decide this question before [209] issuing a citation as requested by the appellants (Matter of Cook, 244 NY 63; Matter of Oswald, 24 AD2d 465; Matter of Fay, 70 Misc 2d 51, affd 41 AD2d 703). The further argument is advanced that by refusing to issue supplemental process as requested, the Surrogate’s Court did not obtain jurisdiction over the appellants. SCPA 203 provides that the Surrogate’s Court obtains personal jurisdiction by, among other means, "appearance of an adult competent party in person or by attorney or by pleading” (10 Cox-Arenson-Medina, NY Civ Prac, par 203.04). Both appellants are adults and there is no indication that either is not fully competent. Jurisdiction was thus obtained by the appearance of two attorneys on their behalf, by means of the filing of authorization of attorney forms on the return date of the citation. By the filing of objections to probate, considered pleadings by SCPA 302 (subd 1, par [a]), appellants also appeared by pleading. Finally, appellants received actual notice of the proceeding and were given a full opportunity to litigate their claim. In a series of arguments which can be condensed to one legal principle, appellants take the position that the Surrogate was bound by the prior Supreme Court judgment declaring them to be the lawful issue of a valid common-law marriage contracted by the decedent’s predeceased child. Although appellants discuss the issue in terms of judicial notice and jurisdiction over declaratory judgments, the real contention is not that the Surrogate should have taken notice of the Supreme Court judgment or that the Supreme Court had exclusive jurisdiction, but rather is that he was bound by res judicata or collateral estoppel, i.e., "the Surrogate’s Court should not now pass upon the issues determined in Supreme Court”. Accordingly, we are faced with the question of what effect, if any, must be given to the Supreme Court judgment from Columbia County. The pertinent facts and the sequence of events bear brief recounting. A proceeding had been commenced and an issue presented in the Surrogate’s Court and the matter was adjourned by consent of the parties and their attorneys to a future date primarily for the convenience of the appellants’ attorney. Shortly before the date of the scheduled adjourned hearing, appellants’ attorney commenced an action for a declaratory judgment in the Supreme Court, Columbia County. The other parties to the Surrogate’s proceedings were not parties in that action, nor were they or their attorneys given notice of any [210] kind. Appellants obtained a default judgment which they then presented to the Essex County Surrogate at the scheduled hearing as conclusive proof of the issue therein. At the outset it is clear that the doctrines of res judicata and collateral estoppel have no application here for it is obvious that essential elements thereof are lacking. It is true that the Supreme Court and Surrogate’s Court have concurrent jurisdiction in matters involving decedents’ estates (NY Const, art VI, §§ 7, 12). Since the Supreme Court is a court of general jurisdiction, rather than specialized, and has the power to render declaratory judgments, it might be argued that where doubt is raised as to whether the Surrogate’s Court may handle all matters that may come before it in a given case, the Supreme Court should be allowed to rule. However, since it is clear that the Surrogate’s Court can determine the validity of a common-law marriage and the legitimacy of the children (Matter of Fay, 70 Misc 2d 51, affd 41 AD2d 703, supra; Matter of Oswald, 24 AD2d 465, supra; Matter of Manville, 58 Misc 2d 881; Matter of Erlanger, 136 Misc 784, affd 229 App Div 778), no doubt exists here. Where, as here, the Surrogate’s Court has already acted and where all the relief requested may be obtained in the Surrogate’s Court, the Supreme Court ordinarily refrains from exercising its concurrent jurisdiction and the court first assuming jurisdiction should retain it to the exclusion of the other (Dunham v Dunham, 40 AD2d 912; Matter of Moody, 6 AD2d 861). We, therefore, conclude that the judgment of the Supreme Court, obtained as it was and under the circumstances presented here, must be regarded as without legal significance insofar as the proceedings in the Surrogate’s Court of Essex County are concerned. The danger of countenancing the procedure follwed by appellants is clearly evident here, where, if the Supreme Court judgment is given legal effect, even to the extent of being considered prima facie proof of the facts found therein, the appellants will have subverted the rules of procedure in that they will have shifted the burden of proof from themselves to their adversary. Moreover, sanctioning such conduct would result in duplicity of proceedings with the attendant increase in litigation, expense and confusion; would be an open invitation to forum shopping by the bar and would obstruct the orderly administration of justice. We find no merit to the claim by the appellants that the Surrogate should have disqualified himself. The remote con [211] tacts set forth in support of this claim, almost inevitable in any community, totally fail to demonstrate even the slighest hint of potential bias. The record reveals that a very substantial estate is in issue. Even though the appellants refused to take advantage of the Surrogate’s invitation to reopen the case, after they had rested, the interests of justice mandate that the issue be fully litigated before the Surrogate (CPLR 5522). The order entered January 2, 1976 should be affirmed; the decree entered January 15, 1976 should be reversed, on the law and the facts, and the proceeding should be remitted for further proceedings not inconsistent herewith, with costs to abide the event.