On the 1st day of October, 1857, the intestate, James Devine, deposited with the defendant, a savings bank in the city of New York, the sum of $485, and soon thereafter went to the Island of Cuba with his wife, the present plaintiff, to reside, leaving his wife's mother, Isabella McNeil, residing in the city of New York. Neither James Devine nor his wife having returned to New York in April, 1869, Mrs. McNeil applied to the surrogate of New York for letters of administration upon his estate, upon sufficient formal proof that he had died intestate, leaving assets in the county of New York, and that his wife was also dead, and that she was a creditor; and in May, 1869, the surrogate granted letters *Page 463 of administration to Mrs. McNeil upon his estate. The proceedings resulting in the letters of administration complied with the statutes upon the subject, and were all regular in form. After letters were issued to her she went to the savings bank, produced her letters and demanded and received the deposit, which had been made about twelve years before, with the accumulation of interest.
In May, 1872, the plaintiff returned from Cuba to New York, and then, for the first time, learned what her mother had done, and she applied to the surrogate for letters of administration upon her husband's estate upon allegations and proofs that he lived in Cuba until March, 1871, when he died intestate, and the surrogate revoked the letters which had been issued to Mrs. McNeil and granted letters to the plaintiff, who had again married.
The plaintiff then demanded the deposit of the defendant, with the accumulation of interest, and payment being refused she brought this action and recovered. The sole question for our consideration is, whether the payment to the first administratrix is a defence to this action.
It is claimed, on the part of the plaintiff, that the surrogate, in granting letters upon the estate of her husband, who was not then dead, acted wholly without jurisdiction, and that his proceedings in granting such letters were null and void. The question as to the effect of letters granted under such circumstances, so far as I can discover, has never been decided in this State, and is, in this case, for the first time before this court for consideration.
Surrogates' Courts are courts of limited and special jurisdiction, and yet their jurisdiction to grant administration upon the estates of deceased persons is general and exclusive. No other courts can act and discharge the same functions. Before their proceedings can have any validity or confer any authority, they must have jurisdiction to act, and this is true of all courts. No court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in the particular case, can make a valid record, or confer any rights. *Page 464
When a statute prescribes that some fact must exist before jurisdiction can attach in any court, such fact must exist before there can be jurisdiction, and the court cannot acquire jurisdiction by erroneously deciding that the fact exists, and that it has jurisdiction. But where general jurisdiction is given to a court over any subject, and that jurisdiction depends, in the particular case, upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence, its decision upon the question of its jurisdiction is conclusive until reversed, revoked or vacated, so far as to protect its officers and all other innocent persons who act upon the faith of it. (Miller v.Brinkerhoff, 4 Denio, 119; Staples v. Fairchild,3 N.Y., 41; People v. Sturtevant, 9 id., 263; Skinnion v. Kelley, 18 id., 356; Porter v. Purdy, 29 id., 106; Bumstead v.Read, 31 Barb., 661; Grignon's Lessee v. Astor, 2 How. [U.S.], 319; Holcomb v. Phelps, 16 Conn., 127; State v.Scott, 1 Baily [Law R.], 294; Roborg v. Hammond, 2 Harris Gill, 42; Brittain v. Kinnaird, 1 Brod. Bing., 432.)
This rule as to the jurisdiction of officers and courts of limited and special jurisdiction has many illustrations in the cases cited. In Staples v. Fairchild, the rule is announced as follows: "Where certain facts are to be proved before a court or officer of special and limited jurisdiction as a ground for issuing process, and there is a total defect of evidence, the process will be void; but where the proof has a legal tendency to make out a proper case, in all its parts, for the jurisdiction of the court or officer, although such proof may be slight and inconclusive, the process will be valid until set aside on a direct proceeding for that purpose. In one case the court acts without authority, in the other it only errs in judgment upon a question properly before it for adjudication. In the one case there is a defect of jurisdiction; in the other there is only error of judgment." In Porter v. Purdy, the following language is used: "When, in special proceedings in courts or before officers of limited jurisdiction, *Page 465 they are required to ascertain a particular fact, or to appoint persons to act in such proceedings, having particular qualifications or occupying some peculiar relation to the parties or the subject; such acts, when done, are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose; and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be." In Grignon'sLessee v. Astor, where, by a law of Michigan, the County Courts have power, under certain circumstances, to order the sale of the real estate of a deceased person for the payment of debts and legacies, it was held that it was for that court to decide upon the existence of the facts which gave jurisdiction. InBrittain v. Kinnaird, DALLAS, Ch. J., said: "The magistrate, it is urged, could not give himself jurisdiction by finding that to be a fact which did not exist, and he was bound to inquire as to the fact, and when he has inquired his conviction is conclusive of it."
The jurisdiction of Surrogates' Courts is defined, and their proceedings are regulated in our statutes. It is provided (2 R.S., 74, § 23) that "the surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant letters of administration of the goods, chattels and credits of persons dying intestate in the following cases: 1. When an intestate, at or immediately previous to his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened. 2. When an intestate, not being an inhabitant of this State, shall die in the county of such surrogate, leaving assets therein. 3. When an intestate, not being an inhabitant of this State, shall die out of the State, leaving assets in the county of such surrogate, and in no other county. 4. When an intestate, not being an inhabitant of this State, shall die out of the State, not leaving assets therein, but assets of such intestate shall thereafter come into the county of such surrogate." It is further provided (§ 26) that "before any letters of administration shall be granted on the estate *Page 466 of any person who shall have died intestate, the fact of such person's dying intestate shall be proved to the satisfaction of the surrogate, who shall examine the persons applying for such letters, on oath, touching the time, place and manner of the death, and whether or not the party dying left any will; and he may also, in like manner, examine any other person, and may compel such person to attend as a witness for that purpose."
Under these provisions of the statute, the surrogate can no more institute a proceeding than the judge of any other court can institute a suit. He must wait until some person interested comes before him and, upon proper allegations, invokes the exercise of his jurisdiction; and then he has not the option to exercise it — he must exercise it. If he should refuse to act, he can be compelled to action by mandamus. While the statute gives him no jurisdiction to administer upon the estate of a living person, it imposes upon him the duty of inquiry as to the death of any person upon whose estate letters of administration are applied for, and the inquiry is a judicial inquiry. In discharging that duty, he may examine the person applying for letters and examine other witnesses, and in making such examination he is discharging his judicial functions and exercising his rightful jurisdiction. He can compel the attendance of witnesses before him by attachment; and false swearing would be perjury under our statutes upon that subject. When proof has been produced to his satisfaction, the other conditions of the statute being complied with, he must issue letters. The inquiry may be a difficult one. In many cases in the time of war, in the cases of absence upon the seas, or in foreign lands, and in the case of long absence unheard from, death cannot be proved with infallible certainty. Witnesses may be untruthful or mistaken, and the surrogate may thus be led into error, yet he must act; the statute makes it his duty to do so. He must decide upon the fact of death as best he can upon the evidence produced, exercising a judgment not infallible. Does he decide it at his peril? If he decides one *Page 467 way, has he jurisdiction? And if he decides the other, has he no jurisdiction, and has he had none?
The claim is, that if death has not occurred, although the surrogate may have been satisfied by the clearest proof before him that death had occurred, his proceedings are a nullity for want of any jurisdiction to act. The consequence is that they furnish no protection to any one. The surrogate, who has in good faith ordered the sale of property and the distribution of money, may, in after years, be made liable for the whole estate. After many years it may be a question whether the intestate died in one month or in another month, earlier or later; and shall the jurisdiction of the surrogate and the validity of his proceedings and his protection against liability depend upon how this question may be determined by a jury upon disputed evidence? If the surrogate's proceedings are to be held null and void in case he errs as to the fact of death, the same result must follow if he errs as to the place of death, and as to the other facts mentioned in section 23, above cited. The fact of inhabitancy is frequently one difficult to be determined. It is one the surrogate must determine before he can issue letters, and its determination frequently depends upon disputed and fallible evidence; and if error as to the fact of death will leave him with no jurisdiction, so will error as to the fact of inhabitancy, and the consequence will be that in such a case his proceedings will give no protection to any one. A construction of the statutes which will lead to such results will make the laws as to the jurisdiction and proceedings of Surrogates' Courts difficult and hazardous to execute, and should not be tolerated unless the language used will admit of no other construction. I am of opinion, taking into consideration the various provisions of the statutes, that it was the intention of the legislature to confer upon Surrogates' Courts sole and exclusive jurisdiction over the subject of granting letters of administration; and as part of that jurisdiction to determine the facts, upon sufficient evidence, upon which their action must rest.
As early as 1792 (2 Greenl., 420), in the preamble to an *Page 468 act concerning administrators, it is recited that "administrations had been frequently granted in this State, upon the mere suggestion of the party applying for the same, without due proof of the death of the person upon whose estate they were granted; and it has happened that administrations had been granted upon estates of persons who were then living and residing within this State; and administrations were frequently granted to persons in no wise related to the intestate, and who procured administration only with a view of appropriating the estate of the intestate to their own use, from which practice great inconveniences were likely to ensue," for remedy whereof it was enacted "that no letters of administration should thereafter be granted by the judge of probates or by any surrogate upon the estate, goods, chattels or credits of any person represented as having died intestate until due proof be made before the said judge or surrogate to his satisfaction that such person was dead and died intestate;" and substantially the same provision has been continued in the statutes to this day. This provision has made it the duty of the surrogate to institute a judicial inquiry into the facts of death and intestacy.
The statutes furnish a complete system. The surrogate is to take judicial action and determine the facts upon which his jurisdiction rests. If the case be a proper one he must issue letters, and then the letters are conclusive evidence of the authority of the administrator until reversed on appeal or revoked. (2 R.S., 80, § 56.) There is ample power to revoke or vacate letters in case they have been improperly granted; but in that case the acts of the administrator, done in good faith, are valid. (2 R.S., 80, § 47; Laws of 1837, chap. 460; Flinn v.Chase, 4 Denio, 85; Kerr v. Kerr, 41 N.Y., 272.) The administrator is required to give a bond that he will faithfully execute his trust and obey all orders of the surrogate touching the administration.
Taking all these provisions together it is apparent that it would be rare that a living person would be seriously harmed by administration upon his estate. But it is otherwise with *Page 469 persons who deal with those who are thus clothed as administrators with the conclusive evidence of authority. This defendant, when called upon by the first administrator, could not resist payment, even if it had been practicable for it to ascertain that Devine was then living; and whether he was dead or alive was an issue which it would not have been permitted to litigate. (Prosser v. Wagner, 87 Eng. Com. Law, 287, and note; Belden v. Meeker, 47 N.Y., 307; Parhan v. Moran, 4 Hun, 717; Williams on Executors, 492.)
As my conclusion in this case is based upon the construction of the statutes of this State regulating the jurisdiction and proceedings of Surrogates' Courts, decisions from other States made under statutes not the same, can furnish us little aid; but the following authorities tend somewhat to sustain the conclusion I have reached: Bumstead v. Read (31 Barb., 661); Bolton v.Brewster (32 id., 389); Morrell v. Dennison (8 Abb., 401);Holcomb v. Phelps (16 Conn., 127); Roborg v. Hammond (2 Harr. Gill, 42); Parhan v. Moran (supra).
There is a dictum adverse to my conclusion in Allen v.Dundas (3 T.R., 125), and also in Griffith v. Frasier (8 Cranch, 9). In Jochumsen v. Suffolk Savings Bank (3 Allen, 87), the precise question involved in this case, of the payment by the savings bank to an administrator of a depositor appointed in his lifetime, was decided under the Massachusetts statutes adversely to the views I have expressed. It was held that the depositor could recover notwithstanding the prior payment by the bank to the administrator. In Bolton v. Jacks (6 Robertson's Sup. Ct. R., 166), there is a learned discussion of the question of the jurisdiction of courts, and it was there held that if a surrogate admitted to probate a will of a testator not at the time of his death an inhabitant of his county, he acted without jurisdiction, and that his proceeding was void and could be attacked collaterally. I believe the decision to be unsound in this respect.
A further criticism of cases to which our attention has been called would not be useful. The question for our decision is *Page 470 not free from doubt; a decision either way would be confronted with some authority and meet with some logical difficulties.
The judgment must be reversed and new trial granted, costs to abide event.