The Surrogate.
In the month of March last, I directed a commission to issue in this case “ for the purpose of instituting the proper inquiries to ascertain the relationship of Feme with the decedent.” As the evidence then stood, if it had been apparent that no further information could be procured, I would have been compelled to come to some conclusion as to the claim of the applicant, upon the presumptions of law arising out of the facts as then indicated. The testimony however was peculiar in being drawn entirely from documents and letters, and from witnesses acquainted with the decedent only during her residence in this city; and it was highly probable, to say the least, that on resorting to the theatre of the transactions in France, the questions of the legiti[260]*260macy of Ferrié, and his relationship to the decedent might be determined with certainty. Mde. Du Lux had for forty years in all her correspondence termed Ferrié her nephew, and the proofs here were not so positive as utterly to exclude the possibility of establishing that relationship on closer investigation. It often happens in a case depending upon circumstan- • tial evidence, that a single new fact furnishes the key to the solution of what was before mysterious, serves to reconcile apparent contradictions, and dissipates every doubt; and it would seem altogether premature to pronounce judgment upon a state of facts far from affording clear and satisfactory light, in the very face of a strong probability that further proofs could be procured. Nov was I insensible to the circumstance, that at the place of the decedent’s alleged marriage and of Ferrié’s birth, no investigations appeared to have been made, and that field had been left entirely unexplored. For these reasons I directed a commission to be issued. Meanwhile the Legislature of this State has passed an act, which is supposed to vary the status of Ferrié. The law reads as follows: “ Illegitimate children, in default of laxvfnl issue, may inherit real and personal property from their mother, as if legitimate; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased.”
1. The first point made is, that by this new legislation the policy of the State has been changed, and no longer leads to the exclusion of illegitimates from sharing in the estate of the mother, in default of lawful issue. My ansxver is, that this may very well be, so far as relates to the distribution of the estate, without affecting the right to administration, xvhich in default of lawful kin, belongs by law to creditors, or the public administrator. In the case of Emma Hughes, an illegitimate, the State of Mexv York by an act of the legislature, granted all its interest in the decedent’s estate to her brothers and sisters; and their propinquity being a matter of fact, uncontroverted, the laxv went on to direct the Surrogate to grant letters of administration to the brothers and sisters, [261]*261some or one of them. The act under which Ferrié now claims, does not in terms interfere with the ordinary course of administration, and this omission would appear not to be without some reason. Undoubtedly the general rule of the Ecclesiastical law, makes the grant of the administration to follow the interest, and our statute is based on that principle; but an illegitimate does not come within the letter of the statute, and his claim must therefore be advanced as an appeal to judicial discretion. Illegitimate descent is not ordinarily ascertainable with so much certainty as lawful descent; and the policy may well be doubted of granting letters of administration ex parte to persons claiming as natural children, and alleging a default of lawful issue. This law is a general law, and I must now construe it so as to establish some definite course of procedure in respect to all future cases. The legislature having failed to disturb the usual order of administration, an illegitimate child has no compulsory claim to the grant of letters. Where in default of lawful issue, the descent of the illegitimate claimant in the first instance is exhibited and proved satisfactorily, it may be proper in the exercise of a sound discretion to make the grant; and on the other hand, if the proofs are not clear, prudence may require the intervention of the public administrator or some other disinterested person, to insure a just scrutiny and the protection of the rights of third parties. I have already declared that I do not consider the proofs of Ferries claim satisfactory, in view of the utter neglect to procure evidence from the place of birth and original domicil; though if it should be made to appear that no other testimony can be adduced, I would be compelled to come to a conclusion on the proofs now in.
2. If Ferrié be the illegitimate son of Mde. Du Lux, it is insisted that the act of the legislature has given him the whole estate to the exclusion of her next of kin. The proposition is about tantamount to a declaration, that after the decease of an intestate, the legislature can change the statute of distributions so as to have a retrospective effect, and can give away the estate in a new direction. Indeed the learned counsel pushed [262]*262the point so far, as to claim that even after administration, and at any time before actual distribution, next of kin may be stripped of their rights by legislative power, and their distributive shares be given over to others. There is no doubt that at common law, the goods of an intestate were bona vacantia, and were taken in charge by the king as parens patries; and from this principle flows the rule, that title in the specific property can only be made through the medium of the officer appointed for that purpose—the administrator. The right of the next of kin to the surplus, after the estate is converted into money and the debts are paid, however it may have originated and grown into custom, was made the subject of legislation by the Statutes 22 and 29 Charles II, the provisions of which acts have been very generally adopted throughout the United States. I recognize entirely the doctrine, that the next of kin have no vested legal right or title to the goods of an intestate, and that they can make title only by means of administration : and I also admit fully the competency of the legislature at any time to alter the statute of distributions prospectively. But the real question is, whether under the statute, on the decease of an intestate, the next of kin have not a vested interest in the distributive shares of the surplus of the estate? If to-day on the death of an intestate unmarried and without issue, his father has succeeded to his personalty, is that right of succession so far the subject of the legislative will, that to-morrow the father may be deprived of the succession, and it may be given away anywhere, even to strangers, or may be taken by the State for public purposes ? Is this right of succession valuable, substantial—is it vested— can it be sold, transferred, devised—does it descend to the next of kin ? All these questions must be answered affirmatively. That the right to a distributive share is not in its nature a title to a specific chattel or thing, must be conceded. But that would be a very narrow criterion of property. In a civilized and commercial community, the most important rights of property exist merely as claims, demands, and obligations. If the idea of property attached merely to physical [263]*263things, a vast amount of private wealth would be excluded from the definition.
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The Surrogate.
In the month of March last, I directed a commission to issue in this case “ for the purpose of instituting the proper inquiries to ascertain the relationship of Feme with the decedent.” As the evidence then stood, if it had been apparent that no further information could be procured, I would have been compelled to come to some conclusion as to the claim of the applicant, upon the presumptions of law arising out of the facts as then indicated. The testimony however was peculiar in being drawn entirely from documents and letters, and from witnesses acquainted with the decedent only during her residence in this city; and it was highly probable, to say the least, that on resorting to the theatre of the transactions in France, the questions of the legiti[260]*260macy of Ferrié, and his relationship to the decedent might be determined with certainty. Mde. Du Lux had for forty years in all her correspondence termed Ferrié her nephew, and the proofs here were not so positive as utterly to exclude the possibility of establishing that relationship on closer investigation. It often happens in a case depending upon circumstan- • tial evidence, that a single new fact furnishes the key to the solution of what was before mysterious, serves to reconcile apparent contradictions, and dissipates every doubt; and it would seem altogether premature to pronounce judgment upon a state of facts far from affording clear and satisfactory light, in the very face of a strong probability that further proofs could be procured. Nov was I insensible to the circumstance, that at the place of the decedent’s alleged marriage and of Ferrié’s birth, no investigations appeared to have been made, and that field had been left entirely unexplored. For these reasons I directed a commission to be issued. Meanwhile the Legislature of this State has passed an act, which is supposed to vary the status of Ferrié. The law reads as follows: “ Illegitimate children, in default of laxvfnl issue, may inherit real and personal property from their mother, as if legitimate; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased.”
1. The first point made is, that by this new legislation the policy of the State has been changed, and no longer leads to the exclusion of illegitimates from sharing in the estate of the mother, in default of lawful issue. My ansxver is, that this may very well be, so far as relates to the distribution of the estate, without affecting the right to administration, xvhich in default of lawful kin, belongs by law to creditors, or the public administrator. In the case of Emma Hughes, an illegitimate, the State of Mexv York by an act of the legislature, granted all its interest in the decedent’s estate to her brothers and sisters; and their propinquity being a matter of fact, uncontroverted, the laxv went on to direct the Surrogate to grant letters of administration to the brothers and sisters, [261]*261some or one of them. The act under which Ferrié now claims, does not in terms interfere with the ordinary course of administration, and this omission would appear not to be without some reason. Undoubtedly the general rule of the Ecclesiastical law, makes the grant of the administration to follow the interest, and our statute is based on that principle; but an illegitimate does not come within the letter of the statute, and his claim must therefore be advanced as an appeal to judicial discretion. Illegitimate descent is not ordinarily ascertainable with so much certainty as lawful descent; and the policy may well be doubted of granting letters of administration ex parte to persons claiming as natural children, and alleging a default of lawful issue. This law is a general law, and I must now construe it so as to establish some definite course of procedure in respect to all future cases. The legislature having failed to disturb the usual order of administration, an illegitimate child has no compulsory claim to the grant of letters. Where in default of lawful issue, the descent of the illegitimate claimant in the first instance is exhibited and proved satisfactorily, it may be proper in the exercise of a sound discretion to make the grant; and on the other hand, if the proofs are not clear, prudence may require the intervention of the public administrator or some other disinterested person, to insure a just scrutiny and the protection of the rights of third parties. I have already declared that I do not consider the proofs of Ferries claim satisfactory, in view of the utter neglect to procure evidence from the place of birth and original domicil; though if it should be made to appear that no other testimony can be adduced, I would be compelled to come to a conclusion on the proofs now in.
2. If Ferrié be the illegitimate son of Mde. Du Lux, it is insisted that the act of the legislature has given him the whole estate to the exclusion of her next of kin. The proposition is about tantamount to a declaration, that after the decease of an intestate, the legislature can change the statute of distributions so as to have a retrospective effect, and can give away the estate in a new direction. Indeed the learned counsel pushed [262]*262the point so far, as to claim that even after administration, and at any time before actual distribution, next of kin may be stripped of their rights by legislative power, and their distributive shares be given over to others. There is no doubt that at common law, the goods of an intestate were bona vacantia, and were taken in charge by the king as parens patries; and from this principle flows the rule, that title in the specific property can only be made through the medium of the officer appointed for that purpose—the administrator. The right of the next of kin to the surplus, after the estate is converted into money and the debts are paid, however it may have originated and grown into custom, was made the subject of legislation by the Statutes 22 and 29 Charles II, the provisions of which acts have been very generally adopted throughout the United States. I recognize entirely the doctrine, that the next of kin have no vested legal right or title to the goods of an intestate, and that they can make title only by means of administration : and I also admit fully the competency of the legislature at any time to alter the statute of distributions prospectively. But the real question is, whether under the statute, on the decease of an intestate, the next of kin have not a vested interest in the distributive shares of the surplus of the estate? If to-day on the death of an intestate unmarried and without issue, his father has succeeded to his personalty, is that right of succession so far the subject of the legislative will, that to-morrow the father may be deprived of the succession, and it may be given away anywhere, even to strangers, or may be taken by the State for public purposes ? Is this right of succession valuable, substantial—is it vested— can it be sold, transferred, devised—does it descend to the next of kin ? All these questions must be answered affirmatively. That the right to a distributive share is not in its nature a title to a specific chattel or thing, must be conceded. But that would be a very narrow criterion of property. In a civilized and commercial community, the most important rights of property exist merely as claims, demands, and obligations. If the idea of property attached merely to physical [263]*263things, a vast amount of private wealth would be excluded from the definition. The constitution forbids the deprivation of private property without “ due process of law.” The entire personal property in the State io the course of a single generation, passes through the course of succession.— Now, by the argument, the owner of a horse cannot be deprived of his property by legislative authority, save by due process of law, and yet, the next of kin entitled to share in an estate worth millions, may be so deprived without due process of law, at any time before actual distribution has been made. I cannot accede to a proposition so subversive of private right, and so repugnant to all established notions of the proper sphere of legislative functions. On the contrary, it seems to me quite clear, that immediately on the decease of an intestate, his next of kin become instantaneously clothed with a vested right to share in the surplus of his personal estate, after the payment of his debts, in due course of administration, notwithstanding the fact that this right cannot be enforced except through the medium of an administrator. This claim to a distributive share cannot by an act of the Legislature be confiscated, or be taken away and granted to another person, and although the law may be changed as to future cases, such a change cannot affect a right of succession already devolved.
3. The general doctrine is that a law must be construed prospectively and not retrospectively. The impropriety of making laws reaching back to the past is so manifest, that a statute will be presumed to relate only to the future, unless there are very express words giving it a retrospective application. Besides, the act in question, whilst declaring that illegitimates, in default of lawful issue, “ may inherit real and personal property from their mother, as if legitimate,” follows up the provision directly by saying, “ but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased.” It is said, however, that the saving clause does not reach this case, because personal property [264]*264never vests in the heirs but only in the next of hin. But such a pinched, restricted construction is removed by the previous portion of the act, which says illegitimates may “ inherit” personalty, the act itself thus interpreting the words “ heir” and “ inherit” as applicable to the succession to personal estate.
4. The lawful next of kin of the decedent not being affected by this act, it is apparent that if Ferrié claims as an illegitimate, and if there are any next of kin of Madame Du Lux, the act, as to them, is a pure nullity. They can appear, claim their rights, and, on becoming residents, administer to the estate, and ultimately take, on distribution. This right to distribution and succession, is a right the State has not undertaken to depi'ive them of, and could not have deprived them of, even by express special legislation, without violating the rights of private property.
5. That the next of kin, in case of Ferrié’s illegitimacy, are entitled, is therefore clear, and although from being nonresident aliens, they are disqualified from administering, that disqualification may be removed by a change of residence to New York, and in default of their administering, the Public Administrator in this county is entitled to letters before creditors and strangers. Their alienage, however it affects the mere question of administration, affords no reason for disregarding their claims as to the property. In that respect their standing here is not a matter of comity, but of strict right, and there is no tribunal in any civilized country, I hope, where their rights would not be respected. I must therefore remain of the same opinion, as expressed on the former hearing of this case, and direct a commission to be issued as already determined. That commission must issue, however, in the ordinary form, and should be under the supervision of a person appointed by this Court. The commission rogatovre, invoking the aid of foreign tribunals, in the form suggested by the counsel for the French claimants, presents no advantages, and is exposed to the objection that it removes the investigation from the control of this Court, and from the operation of [265]*265those rules of evidence which prevail in American tribunals.
The objection made to the right of the French consul to be heard in this case seems to me not well founded. Our treaty with France secures to the consuls of both nations the right to apply “ to the authorities of their respective governments, whether federal or local, judicial or executive”....“ for the purpose of protecting, informally, the rights and interests of their countrymen, especially in cases of absence.” This treaty is a formal recognition of a practice established by national comity. FT either the treaty nor the usage gives the the consul any status in the court as a party. He appears only “ informally," having a right to be heard not as a party, but as the national agent of parties supposed to be interested.