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 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. Bice 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 the said Elizabeth B. Bice, with the proofs and decree adjudging probate thereof be filed in the office of the surrogate of the county of New York.” It. matters not 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 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 files with his petition 6m instrument executed by the foreign executor or adminis[71] trator or person otherwise entitled as aforesaid, authorizing the petitioner to receive such ancillary letters.” The plain-' tiffs 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, 70 App. Div. 64-71, with respect to a nonresident decedent leaving assets in this State, “no one can take out administration here except through, or by the voluntary action of the foreign executor.” 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. Bice, deceased, was void, and that they thereby acquired no capacity to maintain this action. 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. Bice was originally plaintiff and Oran T. Holt as executor, etc., of Elizabeth B. Bice, 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 in the present' action. The [72] 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. Bice’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. Bice, then deceased, which provided for a totally inadequate payment to Mrs. Bice’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 in invoking that jurisdiction, 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. Bice’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 procurement 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 upon the defendant in the judgment. There is no contention that any such fraud was practiced upon Holt in the case under consideration. It is also undoubtedly true that a collusive judgment may be questioned collaterally by parties who are injured by it, or [73] 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. That rule might be invoked by Mr. Bice’s legatees, if they were in a position to sue in their own behalf, but it is not available to these plaintiffs suing in a representative capacity, and merely as the substitutes in this State, of Holt, the executor by whose consent the judgment was entered. The objection that the action was not properly transferred to the Circuit Court for the Southern District of Texas is untenable. The act of Congress of March 11, 1902, creating the Southern District provided for the transfer of “ pending ” actions and proceedings. At that date, owing to the death of Wm. M. Bice, his action against Holt had abated. It was not, however, terminated, and was still pending. An action upon a cause which survives the death of a party is not ended by his death. It
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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 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. Bice 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 the said Elizabeth B. Bice, with the proofs and decree adjudging probate thereof be filed in the office of the surrogate of the county of New York.” It. matters not 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 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 files with his petition 6m instrument executed by the foreign executor or adminis[71] trator or person otherwise entitled as aforesaid, authorizing the petitioner to receive such ancillary letters.” The plain-' tiffs 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, 70 App. Div. 64-71, with respect to a nonresident decedent leaving assets in this State, “no one can take out administration here except through, or by the voluntary action of the foreign executor.” 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. Bice, deceased, was void, and that they thereby acquired no capacity to maintain this action. 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. Bice was originally plaintiff and Oran T. Holt as executor, etc., of Elizabeth B. Bice, 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 in the present' action. The [72] 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. Bice’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. Bice, then deceased, which provided for a totally inadequate payment to Mrs. Bice’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 in invoking that jurisdiction, 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. Bice’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 procurement 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 upon the defendant in the judgment. There is no contention that any such fraud was practiced upon Holt in the case under consideration. It is also undoubtedly true that a collusive judgment may be questioned collaterally by parties who are injured by it, or [73] 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. That rule might be invoked by Mr. Bice’s legatees, if they were in a position to sue in their own behalf, but it is not available to these plaintiffs suing in a representative capacity, and merely as the substitutes in this State, of Holt, the executor by whose consent the judgment was entered. The objection that the action was not properly transferred to the Circuit Court for the Southern District of Texas is untenable. The act of Congress of March 11, 1902, creating the Southern District provided for the transfer of “ pending ” actions and proceedings. At that date, owing to the death of Wm. M. Bice, his action against Holt had abated. It was not, however, terminated, and was still pending. An action upon a cause which survives the death of a party is not ended by his death. It still remains pending, but is dormant, subject to be revived at any time by the substitution of the proper representative or successor in interest of the deceased party. Nor was the action excepted from the provision of the statute because an order had been made for the taking of testimony before examiners in equity. The proviso was that those causes should be retained in the court in which they originated, in which “evidence had been taken in whole or in part before the present District Judges of the judicial districts of Texas as heretofore constituted.” Hnder the equity practice of the Federal courts evidence taken before an examiner, in preparation for the submission of the cause to the court, cannot in any proper sense be said to have been taken before a judge. The evident intention of the proviso was that causes should not be transferred which had been partly tried before one of the judges. Such was not this case. For the reason that the judgment referred to is a bar to this action, not impeachable upon any ground stated in the reply, as well as for the reason that the plaintiffs have no' legal capacity to maintain the action there must be judgment dismissing the complaint upon the merits, with costs, but under the circumstances without an allowance.
Complaint dismissed, with costs.