Per Curiam:
The judgment should be affirmed on so much of the opinion of the court below as holds that the plaintiffs have no standing in court to maintain, this action. But the judgment should not have been upon the merits. Judgment should be modified by striking out “upon the merits,” and as so modified affirmed, without costs.
Present — Van Brunt, P. J., Patterson, O’Brien, Hatch and. La ugh lin, JJ.
Judgment modified as stated in opinion and as so modified affirmed, without costs.
The following is the opinion of the court below:
Scott, J.:
After further consideration of the provisions of the Code of Civil Procedure, and a careful reading of the authorities cited upon the opposing briefs, I find myself confirmed in the opinion expressed upon the trial that the Code of Civil Procedure is intended to preserve and does consistently preserve a marked distinction between wills admitted to probate in this State and those which are permitted to be filed or recorded upon the production of an exemplified record of probate in a foreign State. Upon wills of the latter class the surrogate’s power is limited to the issue of ancillary letters testamentary, or ancillary letters of administration with the will annexed (§ 2695). The sections so confidently relied upon by plaintiffs (§§ 2642, 2643) apply by their -very terms to the case of a renunciation or refusal to qualify of an executor named in a will which has been admitted to probate. The will of Elizabeth B. Rice has not been admitted to probate in this State. The plaintiff’s petition asked that it be recorded in the surrogate’s office, and the decree of the surrogate merely directed that the “will of Elizabeth B. Rice, with the proofs and the decree [244] -adjudging the probate thereof, be filed in the office of 'the Surrogate . of- the County of New York.” It matters nof that neither in the surrogate’s decree nor in the letters of. administration are the plaintiffs described as ancillary administrators. They could not have been appointed other than- ancillary administrators under such. proceedings as were had in respect to this will. But while the filing of the foreign will with the authenticated record of its probate in Texas conferred upon the surrogate authority to issue ancillary letters, he had no authority to issue such letters, or any letters to these plaintiffs. ■ Section. 2697 of the-Code of Civil Procedure limits the issue of such .letters to the person named in the foreign letters or to the person otherwise entitled to .the possession of the personal-property of the.decedent, “ unless another person applies therefor, and riles with his petition an instrument executed by the foreign executor or administrator, or person otherwise entitled as aforesaid, * * * authorizing the petitioner' to receive such ancillary letters.” The plaintiffs did not bring themselves within the. terms of this section, and hence their attempted appointment by the surrogate was void. As was remarked in Montgomery v. Boyd (78 App. Div. 64, 71) with respect to a non-resident decedent leaving assets in this State, “no one can take out administration here except.through, or by the voluntary action of the foreign executors.” : The defendants have the right to call in question in this action the validity of plaintiffs’ - appointment and their resultant capacity to maintain this action. -..The Surrogate’s Court, while it is now a constitutional- court so far • as concerns its existence, possesses only such jurisdiction as is conferred upon it by statute, and only such powers as are either expressly conferred upon it or are necessarily incident to the exercise of its statutory, jurisdiction. (Bevan v. Cooper, 72 N. Y. 327; Riggs v. Cragg, 89 id. 479; Matter of Bolton, 159 id. 134.) Therefore, any one claiming title or authority under a decree of a Surrogate’s Court must be prepared to show that the court had .jurisdiction to make the decree (Matter of Hawley, 104 N. Y. 262), and such a decree may always be attacked collaterally- for lack of jurisdiction in the surrogate. (Taylor v. Syme, 162 id. 519.) My conclusion is that the attempted appointment of-plaintiffs as administrators with the will annexed of Elizabeth B. Rice, deceased, was void, ■and that they thereby acquired no capacity, to maintain this action.
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Per Curiam:
The judgment should be affirmed on so much of the opinion of the court below as holds that the plaintiffs have no standing in court to maintain, this action. But the judgment should not have been upon the merits. Judgment should be modified by striking out “upon the merits,” and as so modified affirmed, without costs.
Present — Van Brunt, P. J., Patterson, O’Brien, Hatch and. La ugh lin, JJ.
Judgment modified as stated in opinion and as so modified affirmed, without costs.
The following is the opinion of the court below:
Scott, J.:
After further consideration of the provisions of the Code of Civil Procedure, and a careful reading of the authorities cited upon the opposing briefs, I find myself confirmed in the opinion expressed upon the trial that the Code of Civil Procedure is intended to preserve and does consistently preserve a marked distinction between wills admitted to probate in this State and those which are permitted to be filed or recorded upon the production of an exemplified record of probate in a foreign State. Upon wills of the latter class the surrogate’s power is limited to the issue of ancillary letters testamentary, or ancillary letters of administration with the will annexed (§ 2695). The sections so confidently relied upon by plaintiffs (§§ 2642, 2643) apply by their -very terms to the case of a renunciation or refusal to qualify of an executor named in a will which has been admitted to probate. The will of Elizabeth B. Rice has not been admitted to probate in this State. The plaintiff’s petition asked that it be recorded in the surrogate’s office, and the decree of the surrogate merely directed that the “will of Elizabeth B. Rice, with the proofs and the decree [244] -adjudging the probate thereof, be filed in the office of 'the Surrogate . of- the County of New York.” It matters nof that neither in the surrogate’s decree nor in the letters of. administration are the plaintiffs described as ancillary administrators. They could not have been appointed other than- ancillary administrators under such. proceedings as were had in respect to this will. But while the filing of the foreign will with the authenticated record of its probate in Texas conferred upon the surrogate authority to issue ancillary letters, he had no authority to issue such letters, or any letters to these plaintiffs. ■ Section. 2697 of the-Code of Civil Procedure limits the issue of such .letters to the person named in the foreign letters or to the person otherwise entitled to .the possession of the personal-property of the.decedent, “ unless another person applies therefor, and riles with his petition an instrument executed by the foreign executor or administrator, or person otherwise entitled as aforesaid, * * * authorizing the petitioner' to receive such ancillary letters.” The plaintiffs did not bring themselves within the. terms of this section, and hence their attempted appointment by the surrogate was void. As was remarked in Montgomery v. Boyd (78 App. Div. 64, 71) with respect to a non-resident decedent leaving assets in this State, “no one can take out administration here except.through, or by the voluntary action of the foreign executors.” : The defendants have the right to call in question in this action the validity of plaintiffs’ - appointment and their resultant capacity to maintain this action. -..The Surrogate’s Court, while it is now a constitutional- court so far • as concerns its existence, possesses only such jurisdiction as is conferred upon it by statute, and only such powers as are either expressly conferred upon it or are necessarily incident to the exercise of its statutory, jurisdiction. (Bevan v. Cooper, 72 N. Y. 327; Riggs v. Cragg, 89 id. 479; Matter of Bolton, 159 id. 134.) Therefore, any one claiming title or authority under a decree of a Surrogate’s Court must be prepared to show that the court had .jurisdiction to make the decree (Matter of Hawley, 104 N. Y. 262), and such a decree may always be attacked collaterally- for lack of jurisdiction in the surrogate. (Taylor v. Syme, 162 id. 519.) My conclusion is that the attempted appointment of-plaintiffs as administrators with the will annexed of Elizabeth B. Rice, deceased, was void, ■and that they thereby acquired no capacity, to maintain this action.
[245] I am also of the opinion that, even if the plaintiffs had been lawfully appointed and had capacity to sue, the judgment of the Circuit Court of the United States in.the action in which William M. Rice was originally plaintiff and Oran T. Holt, as-executor, etc., of Elizabeth B. Rice, deceased, was defendant, would stand as a complete and impregnable bar to any recovery in this action. It is not important to consider the objections offered to the other judgments read in evidence, for it must be, and I understand is, conceded that the-action to which I have referred involved the identical issues raised in this action and that the judgment in that action, if valid and unimpeachable, constitutes a complete bar to a recovery m the present action. The plaintiffs seek to call in question that judgment in this action upon the ground that it was entered upon the consent of Holt, the executor in Texas of Mrs. Rice’s will; that he had no legal authority to give such consent; that it was given in pursuance of a collusive agreement between him and the personal representatives of William M. Rice, then deceased, which provided for a totally inadequate payment to Mrs. Rice’s legatees; • that the plaintiff Baldwin and certain other legatees have protested against the agreement and refused to consent thereto or to take anything thereunder. It is not contended that the Circuit Court had not jurisdiction to entertain the action, or that any. fraud was. committed upon Holt to induce him to consent to a compromise of the action and the entry of a judgment therein. The only fraud charged is that Holt,' as. executor of Mrs: Rice’s will, committed a fraud upon her legatees.. I know of no principle upon which the judgment can be collaterally attacked in this action, upon any of the grounds suggested. The-plaintiffs seek to maintain this action in a representative capacity as administrators with the will annexed of Elizabeth B. Rice,, deceased, and their claim to act in that capacity is based upon the-refusal of Holt, the Texas-executor, to take out ancillary letters in. this State. They stand, therefore, so far as this action is concerned,, in Holt’s shoes, and can- have no greater rights than he would have-had if he had taken out letters here. It seems to be self evident, that he could -not, for any of the reasons suggested by plaintiffs,, have.called into question the judgment of the Federal court. . It.is-well settled, by an unbroken line of decisions, that a judgment may be impeached, even collaterally, for a fraud practiced in the procure-_ [246] ment or concoction of the judgment itself by which the defendant was prevented from availing himself of his defense (Mayor v. Brady, 115 N. Y. 599), but an examination of. the cases holding that doctrine will show that the fraud referred to is one practiced npon the defendant in the judgment. There is no contention that any such fraud was practiced upon Holt in the ease under consideration. It is also undoubtedly true that a collusive, judgment may be questioned collaterally by parties who are injured, by it, or against whom it is invoked as a bar, if they were neither parties to it, nor privies. (Spicer v. Waters, 65 Barb. 227; 2 Cowen & Hill’s Notes, 854 et seq.