Board v. Board

4 Abb. Pr. 295

• Court: New York Supreme Court
• Decided: January 15, 1857
• Status: Published

Opinion

By the Court—S. B. Strong, J.

—It was undoubtedly necessary, in order to confer upon the surrogate jurisdiction to entertain and act upon the plaintiff’s application for the admeasurement of her dower, that copies of the petition and notices should have been actually served upon the heirs at law (personally upon such as were of full age, and through the guardians of such as were minors) of her late husband. I am inclined to think, too, that any one of the heirs may avail himself of the want of notice to any other heir, as the admeasurement would be ineffectual, unless all of them had been notified. As to the proof of the service of the notice, that rests much in the direction of the surrogate. He ought to be reasonably satisfied, and if there is sufficient evidence to raise a fair presumption, although it may not be of a positive and direct character, that will sustain subsequent procedure. That is no more than just to the applicant; as, if any defect should be promptly pointed out, she might substitute new proof or give a new notice. In this case, the heirs at law were her minor children, who had general guardians. The guardian of two of them signed an admission of the due notice of the preliminary papers upon him, before the surrogate. It does not appear positively that the admission was made in court, but the fair presumption is that it was, as it is dated on the day when the matter was heard, and was witnessed by the surrogate. As the statute confers upon the guardian the right to represent his ward in the proceedings, the admission was sufficient evidence of the service. Then as to the other two minor heirs, there is an affidavit by the defendant in this suit himself incorporated with, and following, the sworn statement of his mother, that she had delivered to him copies of the petition and notice, which were annexed, saying that the said copies of the petition and notice delivered to him by his mother, had been served by him on the guardian of such minors by delivering them to his wife in his absence from home. As the affidavit which the defendant had subscribed and verified by his oath, stated that the papers handed to him were copies of those thereto annexed, and that he had served the said copy of the petition and notice, it seems to me that the papers were sufficiently identified, and if so, the requisite service was proved. If we can look into the subsequent proceedings, and I do not see why we cannot, for further evidence on this subject, an inference that the guardians had been duly notified would fairly result from the fact stated by the commissioners, that both guardians were present when the dower was admeasured, and made no objection to the procedure. Had the heirs been adults, and attended the admeasurement without making any objection, that would have been a waiver of any defect in the proof of the service of the preliminary papers upon them, if it would not have caused a defective service; and I am inclined to think that the conduct of the guardians would at least fortify the proof of service.

The report was handed to the surrogate on the day previous to the one designated in his order. But it was not for his immediate action, nor did he act at all upon it until on the day regularly appointed. Indeed, the order confirming the admeasurement was not made until the fifth day after the report was presented, and the heirs had sufficient time to present their objections, if any they had.

It appears from a memorandum- made by the surrogate upon a paper annexed to the petition and notice of application and the proofs of service, that, at the time designated in the notice, the applicant appeared before him, but that no other person was present, and that hé thereupon adjourned the matter for a short time ; and that, on the adjourned day, the proofs of service of the petition and notice were completed, and the order for admeasurement was made. As the surrogate was then acting as a court, it seems to me that- this original minute of his proceedings was competent evidence of an adjournment, although it had not been incorporated in the book of records kept by him at the time. Had an appeal been made from his order, he certainly could have returned his proceedings in adjourning the matter, and the objection that there was no corresponding minute in his book would not have been available. I cannot see why the objection should not be met with equal efficacy when raised collaterally. If the evidence is received, it shows that there was no discontinuance, and that the surrogate’s proceeding was regular. It is true that the surrogate had no proof of service of the requisite papers on the guardian of two of the heirs, on the day when he adjourned the matter, but it was the service of those papers, pursuant to the statute, which had been actually made, which conferred jurisdiction upon him. The proof of the service was subordinate, and, in fact, a question of practice, concerning which the rules are flexible. The delay in furnishing the proof could not injure any one.

The judgment should be affirmed.