By the Court,
The jurisdiction of the late court of probates, although it has several times come under consideration, seems never to have been very accurately
As Hart was not an inhabitant of this state at the time of his death, none of the surrogates had jurisdiction; and if administration could be granted at all, it is not denied that the judge of the court of probates was the proper officer. 1 R. L. 444, § 1, 3, 15. Weston v. Weston, 14 Johns. R. 428. These proceedings were had while the act of 1813 was in force, and under that act I think the jurisdiction of the proper officer to take the proof of wills and grant administration did not, in any case, turn on the question of assets. The first section declared the general jurisdiction of the judge of the court of probates. The 15th section provided, ‘.‘that in all cases of persons dying out of this state,
The construction I have given to the act of 1813, derives some force from subsequent legislation. By the act of 1823 the court of probates was abolished, and the powers of that court under the 15th section of the act of 1813, in relation to persons dying out of this state, or within it, not being inhabitants thereof, were devolved on the surrogates; but it was with this qualification, that the probate of wills and grant of administration belonging to the surrogate of the county wherein the personal property of the deceased, or any part thereof, might be at the time of his death. Statutes, sess. of 1823, p. 62, §. 1, 2. This qualification was undoubtedly introduced for the single purpose of determining what particular surrogate should have jurisdiction; but it was soon found that it had a more important influence—that the whole jurisdiction of the court of probates had not been transferred ; and an act was passed the next year, providing, “ that in all cases of persons dying without this state, not being inhabitants thereof, and without leaving any goods, or chat
It is said that administration is only granted for the purpose of reaching the goods, chattels and credits of the intestate. If the remark were well founded, it would only prove the letters useless—not that they are void for the want of jurisdiction. But although the letters are granted with a primary reference to the personal assets, and do not per se confer any authority on the administrator over the lands of the deceased, yet when the personalty proves insufficient for the payment of debts, the administrator may have an order for the sale of the real estate. Under the act of 1813, although it should appear affirmatively that there was no personal estate, I think the judge or surrogate might grant administration with a direct view to the sale of the real estate of the deceased. If he could not, there would then be no remedy for a creditor in a case where the heir at law resided out of the state, although there might be an abundance of real property to satisfy all claims upon the intestate. The case of Goodwin v. Jones, 3 Mass. R. 514, will be found to have an important bearing upon this question. Whether under the existing law a case may not happen in which there will be no power to grant administration, although there may be creditors and real property of the deceased within this state, is a question which need not now be considered. 2R. S. 73, $ 23, 24.
New trial granted.