The deceased, Daniel J. Printup, died intestate on or about June 20, 1906, a resident of the county of Miagara, leaving personal property exceeding in value the sum-of $250,. and the value of all the real- estate of which he died seized,: wherever situate, as is stated in the petition, will exceed $2,000. His debts. aggregate upwards of $500, and his son, Eleazer Printup, who is the sole contestant in tliis proceeding, was indebted to .the deceased ,at the time of his death in the sum of $1,200 and upwards, as adjudged in an action in the Supreme Court of this State, in which Moses Printup and others were plaintiffs and Eleazer Printup was defendant. The decision was filed in the Miagara county cleric’s office on or about October 27, 1906, although the petition does not affirmatively show that judgment has been entered thereupon.
-The deceased was an Indian residing upon the Tuscarora Indian Reservation, which , is located in the county of Miagara, and the widow and children are likewise Tuscarora Indians.
The petition alleges that no administrator has been appointed by any court; that it is essential for the protection of the creditors of the estate and the preservation of the personal estate that letters of administration be issued; and' that the Tuscarora Indians as a nation have no peacemakers’ courts or Surrogate’s Court. Mone of these allegations is denied.
It is contended that the contestant’s affidavit establishes that he and his brothers and the widow belong to a tribe of Indians having a separate Indian tribal or governmental organization, owing no allegiance to any other government, and not subject to our laws, and that the Indian council has exclusive jurisdiction to administer upon the estate.
Mo oral proof or other evidence save the affidavit of the contestant was taken before the surrogate, and the surrogate made no *324findings of fact as to whether the Tuscorora Indians have any peacemakers’ or Surrogate’s Court, or any. other judicial tribunal of their own having the right or assuming to administer upon the estates of Indians belonging to that tribe, and We think this contesting affb davit is so general and unsatisfactory that of itself it furnishes no sufficient basis for such a finding.
The case of Dole v. Irish (2 Barb. 639), relied upon by the surrogate, is quite unlike this. casé. It there appeared that the deceased was an Indian belonging to the Seneca nation ; that it was a custom among the Seneca Indians at that time that upon the death of one of the members of the' tribe, his relatives would meet :át' the last place .of residence of the deceased within ten days, after the death and divide his property among themselves; that such a division was made including the property in question before tlie granting of letters of administration. But there is no. proof here of any such custom among the Tuscarora. Indians.
Counsel for the respondent in his brief states that the absence of a Surrogate’s Court does not seriously handicap the Tuscaroras,,as their wills by immemorial custom take effect like deeds at the' death of' the testator, and in cases of intestacy the heirs, simply take possession of the.land by the common or State law of descent, and if there be personalty divide it among thenext of kin.; 'that often relatives, employ a white attorney to explain the State law of distribution to them, so that they may fully Understand it; and that where there are debts and a desire to pay them On moral grounds, the chiefs on request will take the estate through the regular course of Indian administration, whatever that may be. What happens in case of a controversy is not stated:
I think it will be found upon • an examination of the cases, both State and Federal, where the courts have declined to.take cognizance of controversies between Indians^ such decisions rest upon the fact that the Indians to the- controversy belong to "tribes which .have governments of their own regulating their internal affairs! But where they have ceased to regulate their own affairs; wffh no judicial tribunals of their own, no good reason exists for denying to one Indian who h.as been wronged by another redress in our courts, and so the Legislature, has from .time ,to time passed laws permitting resort to he had to our courts, where there is no Indian government, or it is *325inadequate to protect the Indians .in the en joyment of their rights. As early as 1847 an act was passed for the protection and improvement of the Senecá Indians, as its title indicates, which provided that one Indian may maintain .an action against another under circumstances therein stated (Laws of 1847, chap. 365, § 14), and section 5 of the present Indian Law, which is general in its terms, applying to all Indians, provides, that any demand or right of action, jurisdiction of which is not .conferred upon a peacemakers’ Court, may be prosecuted and enforced in any court of the State the same as if all the parties thereto werq citizens. Native Indians may not only hold-and convey, real estate, but are liable upon their contracts. (Laws of 1892, chap. 679, § 2.)
The widow of the deceased and all of his children, save one, join in this appeal, and he is indebted to the estate,, and is, therefore, interested in defeating, any proceeding which will compel him to pay the debt which he honestly owes. , If the appellants have any' claim or claims, and are without remedy for the enforcement thereof for lack of-a peacemakers’ court or'other Indian judicial tribunal, I think they have a right to resort to our courts for the enforcement of that right, and that the provisions of this section áre broad enough to give the Surrogate’s- Court jurisdiction in a proper case. •
Although the question is not raised, it ,is. proper to suggest that the person nominated in the petition for appointment as administrator, not being of. the next of kin or a creditor of the deceased, is not entitled to such appointment in preference to the county treasurer, who is the public administrator, without being joined with others who have a right to such appointment prior to the public administrator. (Code Civ. Proc. § 2660.)
The decree of the Surrogate’s Court should be reversed and the matter remitted to that court for a rehearing and its further action thereon. ;
Spring and Williams, JJ., concurred; McLennan, P. J., and Robson, J., dissented; McLennan, P. J., upon the grounds stated in dissenting opinion in the case of Peters v. Tallchief (121 App. Div. 313), decided at this term of the court.
Decree of Surrogate’s Court reversed and matter remitted to that court for a rehearing and for its further action thereon,