Miller, J.
The bond upon which this action was brought, was executed in accordance with the provisions of section 43 (2 R. S. [Edmond’s Edn.], 7, 9), having in view the appointment of Charles T. Baldwin as collector or special administrator of the estate of Charles Breusing, deceased, who had died leaving a will without naming any executor. Baldwin was appointed while proceedings were in progress for the probate of the will, before the surrogate of the county of New York. Various objections are urged to the validity of the bond, but none of them are of a character to authorize the conclusion that it was not made in accordance with the statute, and is not a legal and binding instrument. The point made, that it was not proved that the surrogate ever issued letters to Baldwin, or that he was legally constituted collector or special administrator, does not appear to have been distinctly taken upon the trial. The only way in which it can be said to have been raised, is that" at the close of the case, a motion was made to dismiss the complaint upon the ground among others, that the evidence was insufficient to sustain the action. No defect is stated in this respect, and no objection was made to the evidence subsequently introduced of the inventory, the order making the letters and other testimony upon any such ground. Had it been presented, the objection might have been obviated by the introduction of the letters.
The case seems to have been tried on the theory that they were in evidence, as the subsequent proceedings would appear to indicate, and hence it is too late to raise the objection upon this appeal. The recital in the bond that the surrogate was' about to issue letters was in accordance with the usual
form, of suck an instrument, and of itself sufficient without stating an actual appointment as special administrator, and as the proof showed that Bakhvin acted as such administrator, was called to account, decreed to be in default in that capacity, and the letters to him revoked, it sufficiently appeared that he had accepted the position, and the bond was valid against his sureties. Nor is there sufficient ground for contending that the paper purporting to be an inventory was not evidence against the defendant. It was introduced as an inventory and appraisement filed in the surrogate’s office, no doubt for the purpose of showing the amount and value of the property of the testator which came into Baldwin’s possession, and no objection Ayas interposed that it was not the inventory of the administrator or that it Avas imperfect on accomit of the absence of a statement that it was made under the direction of Bakhvin. In the absence of any specific objection, and inasmuch as any. such objection might have been obviated if seasonably made, it may be assumed, we think, that there was a waiver of the objection now urged, and that the inventory Avas considered as containing all Avkick was required. The order revoking the letters and the decree of the surrogate also tended to establish that the defendant Avas liable. They were valid as against BaldAvin, and being binding upon him, Avere obligatory upon the sureties to the bond. It is said they Avere made without the service of any notice of the proceedings upon Baldwin, and Avere properly objected to for that reason. The order revoking the letters recites that the citation had been duly served, and the decree sIioavs that it appeared that the order requiring BaldAvin to account was duly served by publication as required by statute. This Avas
prima facie
evidence of service on Baldwin, and the legal presumption is that the proper proof was furnished.
As a general rule, the recital in the decree of a court of inferior jurisdiction of the facts necessary to give jurisdiction, is
prima facie
evidence of such facts, subject to be contradicted, but sufficient
per ss
to uphold the proceeding if
uncontradicted.
(Barber
v.
Winston,
12 Wend., 102;
Belden
v.
Meeker,
2 Lans., 47; affirmed in 47 N. Y., 307.)
' Whether service by publication is sufficient in such a case, will hereafter be considered.
So, also, it is to be presumed in favor of the validity of the proceedings that the administrator took the oath required by law, and that letters were not issued until this was done.
It is insisted that it was not proved that there had been any breach of the bond. The proceedings had before the surrogate show to the contrary, and it was, we think, quite sufficient to establish such breach, that upon the accounting, Baldwin was found to be in default for a large amount, which he has utterly failed to pay to the public administrator. The money being in Baldwin’s hands, as the proof shows, it was his duty to pay it over. The presumption is that he did not, and to escape liability that presumption should be rebutted by proof that he did. If it had been paid to O’Brien, Baldwin’s successor in office, it devolved upon the defendant to prove this fact. The balance due was admitted upon the trial, and if Baldwin had lawfully disposed of it, this should have been shown by the defendant. The general rule is, that the party indebted must seek the creditor, and no reason exists why it should not apply to Baldwin. The proof also showed that Baldwin had absconded, and of course could not be reached personally. There was no duty, therefore incumbent upon the plaintiff to seek Baldwin, nor was the plaintiff called upon to prove negatively that O’Brien had not received the amount of Baldwin’s deficiency.
The objection that the court erred in admitting the. decree as evidence against the defendant of a breach of the condition of the bond, is not well taken. We have already discussed the effect of the evidence in another connection, and the particular objection urged, that service by publication was insufficient to give the surrogate jurisdiction, remains to be examined and considered. The claim that service “ by publication ” is not good as to a special administrator, and
that, personal service is required is not, we think, well founded. The provision in chapter 71 (§7), of the act of 1864, in relation to special administrators or collectors, that upon an accounting of such officer the citation is “to he served on him,” has no such special significance as to require personal service, and is not intended to exclude a service by publication. .The act does not provide in what manner the citation in such case shall be served, whether personally or by publication; and in the absence of any specific enactment, it is a fair presumption that the service was intended to be made in accordance with the practice which had long existed, and to which it was an addition, in proceedings of a similar character. This practice was by publication where an administrator against whom a proceeding had been instituted had become a resident of another State. (3 R. S. [5th ed.], 178-9, §58; 182, §75).
The provisions referred to are, we think, applicable to a special administrator or collector. The statute of 1864 is of a remedial character, and according to a well settled rule is to be construed liberally and beneficially, so as to advance the remedy, and everything is to be done in this respect which can be consistently with any construction that can be put upon it. (Sedg. on Stat. and Const. Law, 359, 360;
Seaman
v.
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Miller, J.
The bond upon which this action was brought, was executed in accordance with the provisions of section 43 (2 R. S. [Edmond’s Edn.], 7, 9), having in view the appointment of Charles T. Baldwin as collector or special administrator of the estate of Charles Breusing, deceased, who had died leaving a will without naming any executor. Baldwin was appointed while proceedings were in progress for the probate of the will, before the surrogate of the county of New York. Various objections are urged to the validity of the bond, but none of them are of a character to authorize the conclusion that it was not made in accordance with the statute, and is not a legal and binding instrument. The point made, that it was not proved that the surrogate ever issued letters to Baldwin, or that he was legally constituted collector or special administrator, does not appear to have been distinctly taken upon the trial. The only way in which it can be said to have been raised, is that" at the close of the case, a motion was made to dismiss the complaint upon the ground among others, that the evidence was insufficient to sustain the action. No defect is stated in this respect, and no objection was made to the evidence subsequently introduced of the inventory, the order making the letters and other testimony upon any such ground. Had it been presented, the objection might have been obviated by the introduction of the letters.
The case seems to have been tried on the theory that they were in evidence, as the subsequent proceedings would appear to indicate, and hence it is too late to raise the objection upon this appeal. The recital in the bond that the surrogate was' about to issue letters was in accordance with the usual
form, of suck an instrument, and of itself sufficient without stating an actual appointment as special administrator, and as the proof showed that Bakhvin acted as such administrator, was called to account, decreed to be in default in that capacity, and the letters to him revoked, it sufficiently appeared that he had accepted the position, and the bond was valid against his sureties. Nor is there sufficient ground for contending that the paper purporting to be an inventory was not evidence against the defendant. It was introduced as an inventory and appraisement filed in the surrogate’s office, no doubt for the purpose of showing the amount and value of the property of the testator which came into Baldwin’s possession, and no objection Ayas interposed that it was not the inventory of the administrator or that it Avas imperfect on accomit of the absence of a statement that it was made under the direction of Bakhvin. In the absence of any specific objection, and inasmuch as any. such objection might have been obviated if seasonably made, it may be assumed, we think, that there was a waiver of the objection now urged, and that the inventory Avas considered as containing all Avkick was required. The order revoking the letters and the decree of the surrogate also tended to establish that the defendant Avas liable. They were valid as against BaldAvin, and being binding upon him, Avere obligatory upon the sureties to the bond. It is said they Avere made without the service of any notice of the proceedings upon Baldwin, and Avere properly objected to for that reason. The order revoking the letters recites that the citation had been duly served, and the decree sIioavs that it appeared that the order requiring BaldAvin to account was duly served by publication as required by statute. This Avas
prima facie
evidence of service on Baldwin, and the legal presumption is that the proper proof was furnished.
As a general rule, the recital in the decree of a court of inferior jurisdiction of the facts necessary to give jurisdiction, is
prima facie
evidence of such facts, subject to be contradicted, but sufficient
per ss
to uphold the proceeding if
uncontradicted.
(Barber
v.
Winston,
12 Wend., 102;
Belden
v.
Meeker,
2 Lans., 47; affirmed in 47 N. Y., 307.)
' Whether service by publication is sufficient in such a case, will hereafter be considered.
So, also, it is to be presumed in favor of the validity of the proceedings that the administrator took the oath required by law, and that letters were not issued until this was done.
It is insisted that it was not proved that there had been any breach of the bond. The proceedings had before the surrogate show to the contrary, and it was, we think, quite sufficient to establish such breach, that upon the accounting, Baldwin was found to be in default for a large amount, which he has utterly failed to pay to the public administrator. The money being in Baldwin’s hands, as the proof shows, it was his duty to pay it over. The presumption is that he did not, and to escape liability that presumption should be rebutted by proof that he did. If it had been paid to O’Brien, Baldwin’s successor in office, it devolved upon the defendant to prove this fact. The balance due was admitted upon the trial, and if Baldwin had lawfully disposed of it, this should have been shown by the defendant. The general rule is, that the party indebted must seek the creditor, and no reason exists why it should not apply to Baldwin. The proof also showed that Baldwin had absconded, and of course could not be reached personally. There was no duty, therefore incumbent upon the plaintiff to seek Baldwin, nor was the plaintiff called upon to prove negatively that O’Brien had not received the amount of Baldwin’s deficiency.
The objection that the court erred in admitting the. decree as evidence against the defendant of a breach of the condition of the bond, is not well taken. We have already discussed the effect of the evidence in another connection, and the particular objection urged, that service by publication was insufficient to give the surrogate jurisdiction, remains to be examined and considered. The claim that service “ by publication ” is not good as to a special administrator, and
that, personal service is required is not, we think, well founded. The provision in chapter 71 (§7), of the act of 1864, in relation to special administrators or collectors, that upon an accounting of such officer the citation is “to he served on him,” has no such special significance as to require personal service, and is not intended to exclude a service by publication. .The act does not provide in what manner the citation in such case shall be served, whether personally or by publication; and in the absence of any specific enactment, it is a fair presumption that the service was intended to be made in accordance with the practice which had long existed, and to which it was an addition, in proceedings of a similar character. This practice was by publication where an administrator against whom a proceeding had been instituted had become a resident of another State. (3 R. S. [5th ed.], 178-9, §58; 182, §75).
The provisions referred to are, we think, applicable to a special administrator or collector. The statute of 1864 is of a remedial character, and according to a well settled rule is to be construed liberally and beneficially, so as to advance the remedy, and everything is to be done in this respect which can be consistently with any construction that can be put upon it. (Sedg. on Stat. and Const. Law, 359, 360;
Seaman
v.
Duryea,
11 N. Y., 324.) A different interpretation would render an accounting in such a case of no avail, where personal service of the citation could not be obtained by reason of a change of residence of the special administrator, or of his absconding from the State, thus frustrating, to some extent, the design and purpose of the act.
There is no ground for claiming that the plaintiff as public administrator had no title to or right of action upon the bond in suit. He was regularly appointed, and succeeded to the rights of the special administrator and of his predecessors according to law, and being entitled to the money under the decree, the assignment of the bond was properly made for the purpose of being prosecuted as the statute requires. (3 R. S. [5th ed.], 366, § 19.) The statute evidently was
intended to authorize a prosecution by the person entitled under the surrogate’s decree to the amount unpaid, and the principal having failed to account or to deliver up the money to the person appointed administrator, there was no legal defence to the action upon the bond. (3 R. S. [5th ed.], 161, 162, § 43.
There is no valid objection to the order of the surrogate assigning the bond for prosecution. It was evidently made in accordance with the provisions of the statute (4 Stat. at Large, 498, §§ 63, 64, 65), and there is no ground for claiming, as we have already seen, that the decree upon which the assignment was based, was for any reason invalid and unauthorized.
The action was properly brought in the name of the plaintiff as public administrator, who had lawfully succeeded to the rights of Baldwin. There may be cases where an action on an instrument of this nature may be brought in the name of the people; but when the party has proceeded by execution in the first instance on the decree, the action was properly brought in the name of the person to whom it was assigned. (Red. S.
&
P. of Surrogates’ Courts, 427, 428.)
Such an action in the name of the real party in interest, is also in accordance with § 111 of the Code.
(Baggott
v.
Boulger, 2 Duer,
160;
O’Connor
v.
Such,
9 Bosw., 318.
The People
v.
Nation
(9 N. Y., 176), merely holds that an action on the bond of a trustee given to the people, for the benefit of those interested in the trust estate, is properly brought in the name of the people, they being “ trustees of an express trust” within the meaning of § 113 of the Code of Procedure. This is not in conflict with the right of the plaintiff to maintain this action under the assignment- of the surrogate. It may also be upheld in the name of the plaintiff, upon the ground that the obligation which the bond created, was for the benefit of the administrator finally appointed, and such being the fair interpretation of the language employed, the plaintiff was entitled to maintain an action for
a violation of this condition.
(Gottsberger
v. Taylor, 19 N. Y., 150.)
There was no valid exception to the different rulings made uppn the trial in regard to the admission of evidence which has not already been considered, and after a careful examination it is apparent that none of such rulings were erroneous.
No other objections are urged which demand comment, and there being no valid grounds for reversing the judgment, it must be affirmed with costs.
Church, Ch. J., Allen and Folger, JJ., dissent on the ground that the decree of the surrogate against the principal in the bond (Baldwin) is not evidence in the action against the surety, for the reason that the surrogate did not acquire jurisdiction by the service of • the citation on Baldwin by publication, and the judgment was based entirely upon the decree, not on the evidence of the assets which had come to the hands of Baldwin. The complaint was solely on the decree; the evidence as to the assets was not regarded by the court in giving the judgment, and did not warrant or sustain the judgment. The judgment was for the precise amount of the decree, and upon the decree, and could not be arrived at by evidence
aliunde.
Earl, J., concurred in the opinion of Miller, J., and was also for affirmance on the ground that the evidence
aliunde
the decree sustained the judgment, and warranted an affirmance.
Bafallo and Andrews, J., were for affirmance on the ground last stated.
Judgment affirmed.