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In the Matter of The Estate of Mary Killan, Deceased, etc.

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, and the case remitted to said Surrogate's Court to proceed in accordance with the views herein expressed.

O'BRIEN, J. (dissenting).-The order from which this appeal is taken dismissed an application by the petitioner to the surrogate to compel an administrator to account after he had been discharged and after he had already distributed all the estate under and in obedience to an order or decree of the surrogate directing such distribution. The petitioner claims that the former decree directed distribution to the wrong parties, and that he is, in fact, the sole next of kin of the deceased who was entitled to the estate. It is important to note at the outset that the order of the surrogate dismissing the application does not state whether it was dismissed for want of power to entertain the proceeding or in the exercise of discretion.

On the 24th of August, 1898, one Mary Killan died intestate, in the City of Rochester, leaving personal property of the value of about $1,500. One Miles T. O'Reilly, a creditor of the deceased, petitioned for letters of administration upon her estate, and they were granted to him by the surrogate of Monroe County. More

In the Matter of The Estate of Mary Killan, Deceased, etc.

than a year thereafter the administrator petitioned for a settlement of his accounts, and the surrogate issued a citation directed to the next of kin and heirs at law, creditors and persons interested in the estate of the deceased to attend a judicial settlement of the administrator's accounts on the 30th day of December, 1899. The citation was duly served by publication, and on the return day thereof there appeared five persons who claimed to be cousins of the deceased and entitled to the distributive share of her estate. The administrator denied their relationship, whereupon an issue of fact was formed and tried, in which the surrogate adjudged and decreed that they were in fact cousins of the deceased, and the only heirs at law and next of kin living. He ordered the administrator to make distribution accordingly, which he did, and having filed his receipts with the surrogate a decree was entered discharging the administrator from his trust. It will be seen that this proceeding involved a decision of the issue of fact as to what persons constituted the sole next of kin of the deceased. The five cousins alleged that they were the sole next of kin and the administrator denied it. In determining the issue the surrogate decided that the five cousins were, in truth, the sole next of kin, and before he could reach that conclusion he had to determine that the deceased died leaving no parent, child, brother or sister, since the cousins could not be the sole next of kin if she had left any nearer relative. The surrogate had jurisdiction of the question to be decided. He had jurisdiction of the fund to be distributed. He had jurisdiction of the administrator and the five cousins; therefore, it would seem that his decree of distribution was made with perfect jurisdiction of the subject-matter and of the parties, and so long as that decree stands it is obviously a bar to this proceeding.

If, upon that hearing, the surrogate had found and adjudged that the deceased left a brother surviving, and that the present petitioner was that brother, and that, as such, he was the sole next of kin, and entitled to have the estate

In the Matter of The Estate of Mary Killan, Deceased, etc.

distributed to him, no one, I think, can doubt that it would be a perfect judgment in his favor, available to him and good as against all the world until opened, reversed or set aside, although he was not a party; and for the plain reason that the court had power to make it, and if he had power to render a judgment in his favor, he had the same power to render it against him and in favor of the five cousins, and the judgment has the same binding effect in the one case as in the other until vacated or reversed in some direct proceeding for that purpose.

About a year after the discharge of the administrator the petitioner, who signs his name as Martin Killeen, a different name from that of the deceased, and a resident of Ireland, filed a petition with the surrogate alleging that he was a brother of the intestate. His petition set forth the issuing of letters to the administrator, claimed that no account had been made, and asked for a citation directing him to account. Thereupon a citation was issued directing the administrator to show cause why he should not render an account, and on the return day, January 23, 1901, the administrator filed an answer setting forth his accounting in the estate, the order of distribution, compliance with that order, the filing of receipts from the distributees, and a decree of judicial settlement and discharge; he also denied Killeen's relationship with the deceased. An issue of fact was thus joined between the petitioner and the administrator, and the former was bound to show that he was, as he claimed to be, the brother of the deceased. The petitioner subsequently made application to the surrogate for a commission to take testimony in Ireland to establish his relationship, and a hearing was then had on the whole question with respect to the petitioner's right to an accounting. The surrogate denied his application for a commission to take testimony and also his application for an independent accounting, on the ground, among others stated in his opinion, that the relief to which he was entitled, if any, was to open the

In the Matter of The Estate of Mary Killan, Deceased, etc.

decree already entered, on notice given to the persons affected thereby, and the Appellate Division unanimously affirmed the order of the surrogate. The petitioner was not cited by name, and the surrogate found he was not a party to the prior proceedings in the Surrogate's Court, under which the estate was distributed and the administrator discharged, and his claim is that he has an absolute right to institute an independent proceeding against the administrator for an accounting in the same manner as if no accounting had ever been had, and the question involved in this case is whether the former decree of discharge does not protect the administrator against this proceeding and remit the petitioner to an application to open the decree or some other remedy. The contention in behalf of the petitioner is, that the former decree of distribution was absolutely void as to him, and of no more effect with reference to this proceeding than if it had never been made. This seems to me to be the radical and fundamental error that pervades the whole argument in support of this appeal. It is a general and universal rule that, where general jurisdiction is given to the Surrogate's Court over such a subject, and that jurisdiction depends in a 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 jurisdiction, as against all the world, is conclusive until reversed, revoked or vacated, so far as to protect its officers and all other innocent persons who acted upon the faith of it. It frequently happens that a surrogate makes an order or decree in which the wrong party is appointed, or administration is granted even in cases where the person alleged to be dead is still living, but as that court has jurisdiction to inquire with reference to all these facts, its orders and decrees have been held to be conclusive, even when infected with a radical error of fact, at least until revoked, vacated or set aside (Kelly v. West, 80 N. Y. 139; Roderigas v. East

In the Matter of The Estate of Mary Killan, Deceased, etc.

River Sav. Inst., 63 N. Y. 467; Bolton v. Schriever, 135 N. Y. 65; Staples v. Fairchild, 3 N. Y. 41; Potter v. Ogden, 136 N. Y. 384; Porter v. Purdy, 29 N. Y. 106; Redf. Law & Pr. of Sur. Ct., 5th ed. 865). In this case it is very clear that the surrogate had jurisdiction to decide as to what persons, as matter of fact, constituted the sole next of kin of the deceased and he did decide that the five cousins were, and involved in that decision is the finding that the deceased died leaving no parent, child, brother or sister, since the cousins could not be the sole next of kin if she died leaving any nearer relative. What the petitioner wants is an opportunity to retry that question. He claims that he has new evidence on the point which, if received, would show that the former finding of the surrogate in favor of the five cousins was an error of fact. He has a right to be heard and to give that evidence, but not in an independent proceeding which utterly ignores what had been decided before. The surrogate in deciding that the five cousins were the sole next of kin acted judicially, and his jurisdiction thus adjudged cannot be impeached collaterally. It can be attacked only directly in a proceeding for that purpose or by appeal. If it were otherwise and the petitioner were to succeed in his application for an independent accounting and establish his relationship as a brother of the deceased, the effect would be to have two decrees of distribution in one estate to entirely different parties made by the same court. In this case we would have one decree directing distribution to be made to the five cousins and another decree made after the administrator had been discharged directing distribution to the petitioner. Moreover, if this proceeding can be entertained the administrator, although he has accounted and distributed the fund under the order of the surrogate, must again account and pay over again to the new claimant. But that is not all. If, after responding to that demand, another party should appear claiming that he was the husband of the deceased and as such entitled to

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