The petitioner, as the alleged brother and only next of kin of the intestate, proceeds under section 2726, subdivision 1, and section 2727 of the Code of Civil Procedure, which provide that a judicial settlement of the accounts of an administrator may be compelled by the next of kin, or any party in interest, after the expiration of one year from the issuance of letters of administration. The Code defines who is a "person interested" as follows: "The expression, `person interested,' where it is used in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof," etc. (Code Civ. Pro. § 2514, subd. 11.)
Mary Killan died intestate at Rochester on the 24th day of August, 1898. In the following October letters of administration were issued to Miles T. O'Reilly as a creditor, on his own behalf, he being the undertaker who attended to the funeral, etc., of the deceased.
The decedent left personal property amounting to the sum of $1,514.77.
In December, 1899, proceedings were instituted to settle the accounts of the administrator, and certain persons appeared who claimed to be cousins of the intestate. The administrator contested these claims, and the surrogate after trial adjudged *Page 551 and decreed that claimants were cousins of the intestate, her only heirs at law and next of kin and entitled to share in her estate.
In February, 1900, the surrogate made his decree, adjudging and commanding the administrator to distribute the estate to these cousins after payment of debts, expenses, commissions, etc.
In January, 1901, this petitioner, Martin Killan, residing in Ireland, filed his petition in the Surrogate's Court of Monroe county, in which he claimed to be the sole next of kin of the intestate, and after setting forth the issuing of letters of administration, alleged that no accounting had been made by the administrator and asked for a citation directing him to show cause why he should not render an account. This petition is based on the fact that the petitioner was not a party to the proceedings for accounting and distribution although a brother of the intestate. Thereupon citation was duly issued by the Surrogate's Court and the administrator appeared and served his answer to the petition, wherein he set forth the accounting proceedings and his due discharge; also denied that petitioner is a brother of the deceased. Thereafter petitioner moved for an order that a commission issue authorizing him to examine the petitioner therein and eight other witnesses upon interrogatories and to make certificate of the same to the Surrogate's Court. The motion was denied and this proceeding dismissed, with costs, and a decree and order entered to that effect, which the Appellate Division affirmed on appeal.
The learned surrogate, on dismissing the proceeding, delivered an oral opinion, in part, as follows: "The court holds that the proceedings upon the judicial settlement of the administrator are before the court, of which it takes judicial notice, by which it appears that there has been a judicial settlement of the accounts of the administrator of this estate to which claimant was not aparty. He was neither cited nor did he appear. The court further holds that the decree made therein is entirely inoperative as tothis claimant, but that the court *Page 552 having acquired jurisdiction of the subject-matter of the judicial settlement and the estate having been settled in that proceeding, it is incumbent upon this claimant to now come in under that proceeding by petition or otherwise and ask that it be opened, giving notice to the persons who then appeared and were affected by that decree, and that the administrator cannot be compelled to account independently, he having already accounted and his account being filed and before the court, at the instance of any number of claimants who may invoke the aid and process of the court for that purpose."
The Surrogate's Court made the following findings, among others: "That the hearing upon said motion was continued until the 7th day of April, 1901, upon which occasion said petitioner appeared by counsel and said administrator appeared by counsel and moved that the application for the order be denied and that the proceedings for the accounting be dismissed."
"It appears from the proceedings upon the judicial settlement of the accounts of the administrator which are before the court and of which the court takes judicial notice, that there has been a judicial settlement of the accounts of the administrator of this estate to which the claimant was not a party; that the court acquired jurisdiction of the subject-matter of the judicial settlement and the estate has been settled in that proceeding."
The surrogate made three conclusions of law, the third of which reads as follows: "That the order that a commission issue to (naming commissioner), authorizing him to examine the petitioner herein, and also (naming eight witnesses) as witnesses for the petitioner, under oath, upon interrogatories to be annexed to such commission, and to take and certify the depositions of the petitioner and of such witnesses and to return the same with the commission through the post office or according to the directions therein or therewith given, be and the same hereby is denied; and that the proceeding against the administrator for a new accounting be and the *Page 553 same hereby is dismissed, and that the said administrator have twenty-five dollars costs and his disbursements."
The petitioner duly excepted to these conclusions of law, and we thus have presented the question whether the dismissal of this proceeding can be justified as matter of law. The dismissal of the proceeding resulted in a final decree. (Village ofChamplain v. McCrea, 165 N.Y. 264.)
Under these findings the decree of the Surrogate's Court in the original accounting proceeding is void as to this petitioner.
"It is an elementary principle, recognized in all the cases, that to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person as well as of the subject-matter, and that the want of jurisdiction over either may always be set up against the judgment when sought to be enforced, or any benefit is claimed under it." (Ferguson v. Crawford,70 N.Y. 253, 256; Hood v. Hood, 85 N.Y. 578.)
In Freeman on Judgments (4th edition, vol. 1, § 117) the learned author says: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void."
The only question presented by this appeal is whether the petitioner was liable to have his proceeding for an accounting dismissed and he remitted to a motion to open the decree in a proceeding absolutely void as to him.
It is well settled that an application to a court to open its judgment is always addressed to its sound discretion, and that the denial of the motion involves no substantial right.
In Foote v. Lathrop (41 N.Y. 358, 361) it was held that an order of the Supreme Court denying a motion to set aside a regular judgment in that court upon the ground that the defendant was not served with process, and the appearance for him was wholly unauthorized, is not appealable to this *Page 554 court; that no party has a substantial right, within the meaning of the Code, to have a regular judgment against him set aside on motion; that it is in the discretion of the court, in which such judgment was rendered, to set it aside or not; and even if void they may leave the party affected by it to show it so in a proper action. Judge GROVER said: "It would still rest in the discretion of the court whether to entertain a motion to vacate the judgment, or leave her to show the judgment void, as to her, whenever interposed as an obstacle to her pursuit of her right to the land." This case was followed in Beards v. Wheeler (76 N.Y. 213) and People ex rel. Brush v. Brown (103 N.Y. 684).
In Estate of McCunn (15 N.Y. State Reporter, 712) this point was involved. An executor of an estate filed an account on which a decree was entered. Some years later he filed a second account, citing therein certain grandnieces of the deceased who were not parties to the first accounting. These grandnieces moved to open the decree on the first accounting on the ground that they had not been made parties. Surrogate ROLLINS of New York, in denying the motion, said: "I am referred to no decided cases which support the notion that persons not parties to an accounting proceeding and not bound by the decree therein, pursuant to section 2742 of the Code, can successfully claim that such decree be opened under circumstances like the present."
The learned courts below erred in holding that the petitioner was not entitled to maintain the proceedings instituted by him and that he must seek his remedy by a motion, which is merely an appeal to the discretion of the court. The petitioner is asking no favor, but is enforcing a substantial right, if it be true that he is a brother of the intestate.
The surrogate was undoubtedly right in suggesting that the petitioner should give notice to the persons who appeared in and were affected by the original proceedings. The proper practice was not to dismiss the proceeding instituted by this petitioner, but to require him to amend his citation and bring in the parties who were cited or appeared on the original *Page 555 accounting. The petitioner having complied with this requirement would be in a position to apply for a commission with interrogatories, and the parties cited could join therein and be duly represented at the execution thereof. The citation should be amended as suggested. If the petitioner succeeds in establishing that he is a brother of the intestate he is entitled to an accounting under the provisions of the Code which he has invoked.
The respondent has argued a number of points that possibly should receive special consideration, although most of them are covered by that which we have already said and the authorities cited.
We have the positive finding of the Surrogate's Court that the petitioner in this proceeding was not cited in the accounting proceedings and was not a party thereto, and that the same was wholly inoperative as to him. It is at this point that we encounter the defect in the administrator's proceedings for an accounting that has led to his present peril of being called on to account for funds paid out under a decree that does not protect him against this petitioner if the latter establishes the fact that he is intestate's brother.
It is argued that it would be a strange miscarriage of justice if the administrator, after having proceeded to an accounting and obtained a decree directing him to pay over to certain parties, could be compelled to again account in an independent proceeding on the petition of some one claiming to be nearer of kin than those cited or appearing in the prior proceedings, and consequently entitled, if the claim is established, to the personal property of the testator.
We have presented here the ordinary situation of a person not joined as a necessary party in an action or special proceeding ignoring the judgment therein, and proceeding, as this court said he might in Foote v. Lathrop (41 N.Y. 358, 361), to show the judgment void when interposed as an obstacle to the remedy he has invoked.
An administrator is not left in the helpless and unprotected position that is assumed to be the case in the argument of the *Page 556 respondent. The Code of Civil Procedure provides for his ample protection by permitting him to sue out a citation running against persons unknown. (§§ 2518-2523.) A citation properly issued under these provisions binds unknown next of kin precisely as if they were named therein. There is no evidence in the record that any effort was made to cut off unknown next of kin, and the citation that was issued is not before us. On the contrary, as already pointed out, it is expressly found that the petitioner was not a party to the former proceeding. This administrator is in the position of any plaintiff who proceeds to judgment without joining all of the necessary parties defendant.
The effect of the judicial settlement of an account is stated in section 2742 of the Code: "A judicial settlement of the account of an executor or administrator, either by the decree of the Surrogate's Court, or upon an appeal therefrom, is conclusive evidence against all the parties who were duly cited orappeared, and all persons deriving title from any of them," etc.
It follows that the decree in the accounting proceeding binds only the parties thereto, and the administrator not having cut off unknown next of kin is liable to respond to any claim that one or more of them may successfully make.
The respondent has cited a number of cases relating to the jurisdiction of the court as to the subject-matter, apparently overlooking the fact that no question is raised on this appeal as to the jurisdiction of the Monroe County Surrogate's Court of the estate of the intestate.
The contention of the appellant is that the court acquired no jurisdiction of his person, and the record conclusively supports this position.
We are referred to Mr. Redfield's Surrogate Practice (p. 865, fifth edition), where he discusses the subject of evidence of jurisdictional facts. The learned author observes: "The rule is stated to be that `when certain facts are proved to a court or officer, having only special and limited jurisdiction, as a ground for issuing process, and there is a total *Page 557 defect of evidence as to any essential fact, the process will be void; but where the proof has a legal tendency to make out a proper case, in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the process will be valid until set aside by a direct proceeding for that purpose.'"
This quotation is from Staples v. Fairchild (3 N.Y. 41). This case involved the regularity of certain attachment proceedings and discusses the powers of courts of limited jurisdiction. It is a direct authority in favor of the petitioner herein on the point that the court acquired no jurisdiction of his person. The learned judge says: "It is well settled that when certain facts are to be proved to a court having only such a jurisdiction, as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be declared void, in whatever form the question may arise."
It is unnecessary to discuss the other cases cited in detail, as they have no bearing upon the failure to obtain jurisdiction of the person of the petitioner.
The much-discussed and overruled case of Roderigas v. EastRiver Savings Institution (63 N.Y. 460) is cited, wherein it was determined in a Surrogate's Court that the intestate was dead, when in fact the contrary was true. The same case was before this court in another phase (76 N.Y. 316), where it was held that the basis of the former decision was that the statute authorized the surrogate to decide upon evidence, and that it now appeared that there was nothing amounting to proof.
In Scott v. McNeal (154 U.S. 34) this case was expressly overruled as violating the fourteenth amendment of the Constitution of the United States, which ordains, among other things, "nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
The court said: "In Roderigas v. East River SavingsInstitution (63 N.Y. 460), in 1875, a bare majority of the *Page 558 Court of Appeals of the State of New York decided that the payment of a deposit in a savings institution, to an administrator under letters of administration, issued in the lifetime of the depositor, was a good defense to an action by an administrator appointed after his death, upon the ground that the statutes of the State of New York made it the duty of the surrogate, when applied to for administration on the estate of any person, to try and determine the question whether he was living or dead, and, therefore, his determination of that question was conclusive. * * * And in a subsequent action between the same parties, in 1879, the same court unanimously reached a different conclusion, because evidence was produced that the surrogate never in fact considered the question of death, nor had any evidence thereof — thus making the validity of the letters of administration to depend, not upon the question whether the man was dead, but upon the question whether the surrogate though so. (Roderigas v. East River Savings Institution, 76 N.Y. 316.) * * * No judgment of a court is due process of law if rendered without jurisdiction in the court, or without notice to the party. The words `due process of law,' when applied to judicial proceedings, as was said by Mr. Justice FIELD, speaking for this court (Pennoyer v. Neff, 95 U.S. 714, 733), `mean a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity there must be a tribunal competent by its constitution — that is, by the law of its creation — to pass upon the subject-matter of the suit; and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State or his voluntary appearance.'" (See, also,Lavin v. Emigrant Industrial Savings Bank, 18 Blatch. 1, 24, U.S. Circuit Court, Southern District of New York.)
In the case at bar it was essential not only that the court should have jurisdiction of the subject-matter, but of the person of petitioner. *Page 559
The Code of Civil Procedure (§ 2473) provides, in terms, that there is a presumption of jurisdiction where the necessary parties were duly cited or appeared, when a decree or other determination is drawn in question collaterally.
The argument of the respondent, in brief, is that it was sufficient if the court had jurisdiction of the subject-matter, to sustain the position that the petitioner must resort to the accounting proceeding if he desired to enforce his rights in the Surrogate's Court.
The respondent further argues that not only is the present proceeding unauthorized on behalf of the petitioner, but that he has an absolute right to intervene in the accounting proceedings, open the same on motion and litigate his rights therein.
We have already pointed out that the motion to open the proceedings is an appeal to the discretion of the court, and that the petitioner herein could not be remitted to an uncertain remedy in a proceeding which resulted in a decree that does not bind him.
It is further argued that assuming it to be an appeal to the discretion of the court, nevertheless, the Surrogate's Court did exercise its discretion, and decided that the petitioner might intervene in the accounting proceeding.
The record before us discloses no such decision, as the learned surrogate simply intimated in his oral opinion that it was incumbent upon the petitioner to come in under the accounting proceedings by petition or otherwise and ask that it be opened; there is no intimation as to what disposition the court would make of that motion.
We, however, regard this as wholly immaterial, as the decree in the accounting proceedings, for reasons already stated, is absolutely void as to this petitioner.
It is contended that the petitioner instead of instituting the present proceedings, might have filed a bill in equity, bringing in all the parties and securing such a judgment as justice dictates.
It is of no importance whether the new issue as to the petitioner *Page 560 being a brother of the intestate is tried in this proceeding, or in the former accounting proceedings, or in a suit in equity, as the result must be the same in case he succeeds in establishing his claim, so far as the administrator is concerned.
It is argued that the Surrogate's Court would have no authority to render a decree compelling the distributees of the fund to make restitution of the same to the petitioner; nor could it vacate its former decree in the premises, having no equity powers.
We hold that the petitioner was at liberty to invoke one of two remedies; he could require the administrator to account in this proceeding, or he might have summoned him and all the parties in interest into a court of equity for a like purpose. The prior accounting proceedings in no way concern the petitioner, as he will be entitled, if he succeeds in establishing his identity as a brother of the intestate, to her entire personal estate after debts and expenses of administration are paid.
We express no opinion as to the limitations, if any, which restrain the Surrogate's Court in rendering a decree in this proceeding if the petitioner is successful. The latter has chosen his forum and must content himself with such relief as can be afforded him therein.
The administrator having entered and obeyed a decree of distribution that does not bind the petitioner cannot invoke it as a shield at this time. If he is subjected to loss by reason of this fact it is due wholly to his failure to avail himself of the protection which the law afforded him.
The suggestion that no question of law is presented by this appeal is disposed of by the exception to the surrogate's conclusions of law, to which reference has already been made.
The order of the Appellate Division, and the decree of the Surrogate's Court of Monroe county therein affirmed, should be respectively reversed, with costs in all the courts to petitioner to abide the event, payable out of the estate, and the case remitted to said Surrogate's Court to proceed in accordance with the views herein expressed. *Page 561