C. J., concurring.
The only question involved in this case is, whether an administrator can resign, by permission of the Probate Court, without having previously settled up his accounts.
Section one hundred of the Act regulating the Settlement of the Estates of Deceased Persons, provides “ that an' executor or administrator may, at any time, by writing filed in the Probate Court, resign his appointment; provided, he shall first settle his accounts, and deliver up all the estate to such person as may be appointed by the Court.” This is all the authority to be found, in our statute upon the subject.
The question is somewhat novel, and the counsel have been able to find but one decision which has any bearing on the subject. The case of Flinn v. Chase, (4 Denio, 85,) seems to be precisely in point. The'Court held that a surrogate has no right to permit or authorize an administrator to resign, except in the cases provided by law. On examination of the Úew York statutes, I have been unable to find the cases referred to by the Court, in which it is said a resignation will be permitted, and the force of the decision is somewhat weakened by the evident misapprehension or mistake of the statute by the Court.
It is insisted that section one hundred of our statute, confers upon an administrator an absolute right of resignation in a certain case, as contradistinguished from a partial or qualified right which he may exercise by permission of the Judge.
The fair inference to be drawn from the statute, following the ordinary rules of construction, is that the permission given in the one case is a negative upon the right in all others. The Probate Judge or surrogate is charged by law with the execution of special duties; he is not vested with plenary powers, but acts within an inferior and limited jurisdiction. There is nothing in the statute conferring upon him the power to accept the resignation of an administrator, except in a single case, and it is not unreasonable to suppose that the Legislature intended to cast upon those who voluntarily took upon themselves the administration of an estate, the burden of settling the same, except in the single case mentioned.
The appellant contends, that inasmuch as the law authorizes an administrator to be removed for certain specific causes, the Judge should be allowed to accept his resignation, where it appears that these causes of removal exist, and that the Court should not be compelled to go through the form of a removal, *117where the party is willing to resign. Where a citation to show cause why he should not be removed for some misfeasance or malfeasance, had issued, and the officer confessed the charge by attempting to resign, the Court would not necessarily be required to go through with all the proof, but might enter an order of removal. Be that as it may, this case presents no such state of facts. There never was an attempt to remove the administrator, and the acceptance of his resignation, under the circumstances, was illegal and void.
Judgment affirmed.
At the January Term, 1858, on re-argument, Burnett, J., after stating the facts, delivered the opinion of the Court— Terry, C. J., concurring.
The first question presented by the record is, whether the resignation of Smith was accepted by the Probate Court. There is no order stating expressly that the resignation was accepted.
In 1 Williams on Executors, 147, it is said: “ Some authorities maintain that, if the Ordinary commit administration to the wrong party, and then commit it to the right, the second grant is a repeal of the first, without any sentence of revocation; but in other cases it has been held, that the first is not avoided, except by judicial sentence ;” “and in all cases where the first administration is repealed, the second stands good, though granted after the first, and before the repeal of it.”
In the case of Bowerbank v. Morris, (Wallace’s C. C. R., 123,) it was held, by the Circuit Court of the United States for the Third Circuit, that “a removal from office maybe either express, that is, by a notification of the President of the United States that an officer is removed; or implied, by the appointment of another person to the same office.” So, in the case of McLaurin v. Thompson, (Dudley’s Rep., 336,) it was decided, by the Court of Georgia, that the second grant of administration is equivalent to a judgment of revocation.
We think there can be no doubt as to the fact that the resignation of Smith was accepted by the Probate Court. The subsequent appointment of Aspinwall was evidence of this, taken in connection with the order made on the thirty-first of December, 1853. Although these are Courts of limited and special jurisdiction, still no great strictness should be required as to the manner of stating facts in their records. So the facts are stated, it is sufficient, although not stated in the most direct and certain form.
The second question is, whether the Court had the right to accept the resignation of Smith before he had settled his accounts.
In reference to this point, we adhere to our former opinion. We see no reason for changing the views we then expressed.
*118But the third question, and the main point in the case, is, whether this error of the Court was void or merely voidable.
In the case of Beckett v. Selover, (7 Cal. Rep., 215,) we held that there were two jurisdictional facts that must exist, to support administration, in every case: first, the death of the party; second, his residence within the county at the time of his death. “ These two facts must be alleged in the petition, and they must be true in point of fact.”
The decision of an inferior Court, upon the question of its own jurisdiction, can not be conclusive upon any one not before it, and then only in reference to jurisdiction of the person, which may always be waived. But when the Court has once acquired jurisdiction, “every movement of the Court is necessarily the exercise of jurisdiction.” If the jurisdiction acquired be of the subject-matter, then all the subsequent proceedings in reference to the subject-matter must be nothing but the exercise of jurisdiction over that subject-matter; so, if the Court once acquire jurisdiction of the person, any other movement affecting the person must be the exercise of jurisdiction as to that person; and when jurisdiction is once acquired of both the subject-matter and the person, then any subsequent movement of the Court must be the exercise of jurisdiction as to both.
In this case, the Probate Court had jurisdiction of the subject-matter and of the person. Administration had been regularly and properly granted to Smith, and he was under the control of the Court, which had power to receive his resignation, suspend his powers, or revoke his letters. (Sections 281, 286.) The Court having jurisdiction to receive the resignation of Smith, the acceptance of his resignation must be nothing more than the exercise of this jurisdiction. Had the Court possessed no power over Smith at all, and, consequently, no right to receive his resignation under any circumstances, then the act of the Court would have been void. But the Court, having jurisdiction of the subject-matter of the estate and of the person of Smith, must judge whether the circumstances of his ease were such as to entitle him to the privilege of resignation; and if the Court erred in this judgment, it was a mere error committed in the exercise of jurisdiction.
The fact of the death of the intestate, and of his residence within the county, are foundation facts upon which all the subsequent proceedings of the Court must rest. Unless these facts exist, the Court cannot make a single binding order in reference to the subject-matter, or the person. But when those facts exist, every subsequent movement of the Court is the exercise of jurisdiction over the subject-matter, and over all persons who have been brought properly before it. When parties interested, as, for example, the heirs in reference to a sale of real estate, have not been brought before the Court, they may, in proper cases *119and by the proper proceedings, set aside such action of the Court.
But in this case, Smith was properly before the Court, and the right of the Court to receive his resignation, under proper circumstances, was clear; and the acceptance of his resignation was only the erroneous exercise of jurisdiction. The Court has power to remove an administrator for certain specified causes. Should the Court remove him without sufficient cause, and he take no appeal, could third parties object to this action of the Court in a collateral proceeding ? So, if the Court suspend an administrator without sufficient cause, and appoint a special administrator during the period of his suspension, could this action of the Court be called in question collaterally ? or would the act of the special administrator be void ? We apprehend not.
The case of Griffith v. Frazier, (8 Cranch, 8,) was where an executor had qualified but afterwards removed from the State, and letters of administration were granted by the Ordinary to another person. This grant was held void, because, “the appointment of an executor vests the whole personal estate in the person so appointed; he holds as trustee for the purposes of the will, but he holds the legal title in all the chattels of the testator; he is, for the purpose of administering them, as much the legal proprietor of those chattels as was the testator himself while alive. This is incompatible with any power in the Ordinary to transfer these chattels to any other person by the grant of administration on them. His grant can pass nothing; it conveys no right; it is a void act.” (Marshall, C. J.)
We have also been referred, by the learned counsel of defendant, to the case of Flinn v. Chase, (4 Denio, 85.)
It must be conceded that this decision is an authority in point. But it does not seem to have been well considered, or rightly decided. The surrogate had improperly appointed Lowry instead of Dugan, the brother of the deceased; and had afterwards accepted of Lowry’s resignation without sufficient reason. The Court held the appointment of Lowry a mere irregularity, but the acceptance of his resignation a nullity. How it was clear that the surrogate had jurisdiction to grant letters, and also to accept the resignation of the administrator; and why his appointment without cause should be merely irregular, and the acceptance of his resignation void, it is difficult to perceive. The surrogate had equal jurisdiction in both cases, and his act in both would seem to have been only an erroneous exercise of jurisdiction.
We think the decision of the Court below, as to the sufficiency of the notice of the application to sell the real estate, was correct, and that the sale was not void for want of notice.
It is unnecessary to decide the question, as to whether the want of sufficient notice of an application to sell real estate can *120be set up as a defence in an action to recover the possession of the property. We may remark, however, as a matter of opinion, that a direct proceeding to set aside the sale would be preferable. Under our probate system, “ the true theory is, that both the real and personal estate of the intestate vest in the heir, subject to the lien of the administrator for the payment of debts and the expenses of administration, and with the right, in the administrator, of present possession.” (Beckett v. Selover, 7 Cal. R., 215.)
If the sale be void, or voidable, the lien of the administrator continues; and it would seem equitable that the purchaser, who has paid the debts of the estate, should have a lien upon the estate for his purchase-money. All the equities of all parties could be better settled in a direct proceeding. (Regland v. Green et al., 14 Smedes & M., 195.) Besides, it may be matter of g-rave doubt whether a sale of real estate without sufficient notice would be void, or merely voidable. The sale being a proceeding in rem, there may not be any sufficient reason for holding the sale void by reason of a defective notice. (4 Phil. Ev., p. 62, note 42.)
For the reasons stated, the judgment of the District Court is reversed, and that Court will render judgment for plaintiff upon facts found.