Johnston v. Smith

32 N.Y. Sup. Ct. 171

• Court: New York Supreme Court
• Decided: September 15, 1881
• Status: Published

Opinion

Boakdman, J.:

The insurance policy held by Samuel T. Johnston, in Broome county, at the time of his death thereby became assets, in part belonging to Lowery S. Johnston’s estate. Until Samuel T. Johnston’s death it was a contract imposing upon the insurance company the obligation to pay to the representatives of Lowery S. Johnston a certain sum of money upon certain terms and conditions. It was a thing in action and an asset within 2 Revised Statutes, *83, § 6, sub. 8. Such asset was within the county of Broome and came there after the death of Lowery S. Johnston. (2 R. S., *73, § 23, sub. 4.) The surrogate of Broome county, therefore, had jurisdiction of the subject-matter.

By section 26 of 2 Revised Statutes, *74, the surrogate is authorized to make preliminary examinations under oath as to essential facts before granting letters of administration. In practice it is usual to embrace such facts in a sworn petition. It is not, however, deemed essential that they should be so stated and, in the absence of proof to the contrary, it may be presumed, in favor of the performance of official duty and of the regularity of official acts, that proper evidence of jurisdictional facts was given before the surrogate. Especially is this so in view of the recitals in the letters of administration. (WestCott v. Cady, 5 Johns. ch., 334, 343; Bolton v. Brewster, 32 Barb., 389, 394; Shuyer v. Richman, 16 Ohio St., 455 ; Van Deusen v. Sweet, 51 N. Y., 385 ; Porter v. Purdy, 29 id., 106.)

The letters issued to Mr. Johnson, as administrator, are regular upon their face, and are presumptive evidence of his legal appointment. (Belden v. Meeker, 47 N. Y., 307, 310; Farley V. MCConnell, 52 id., 630.) No evidence is given to overthrow such presumption.

Such presumption renders it unnecessary to notice the several objections taken to the order granting letters, to the letters granted,, to the bond and to the issuing of letters without citation. But a. word may be said as to each.

The order was made valid and effectual, under Laws of 1874r (chap. 9), when signed by Judge Edwabds.

It will be presumed, in the absence of proof to the contrary, that Johnson took the oath of office. (Cases cited supra, and Dayton v. Johnson, 69 N. Y., 419, 426.) Also that the hond was duly acknowledged, and that the certificate was not signed, by mistake or oversight; besides it would be an irregularity only, and not fatal to the proceedings. (Bloom v. Burdick, 1 Hill, 134; Lawrence v. Parsons, 27 How., 29; Skellinger v. Yendes, 12 Wend., 306; Van Deusen v. Hayward, 17 id., 67.) So, too, of the neglect to issue citations. (James v. Adams, 22 How., 409.)

Mr. Johnson is the legal administrator and his sureties are estopped from denying that fact. It is recited in the bond signed by them. “ The execution of the bond precludes both principals and sureties from gainsaying the surrogate’s jurisdiction in any proceedings for the assets ■ which the appointment and bond have enabled the principal to receive.” (People v. Falconer, 2 Sandf., 83 ; Field v. Van Cott, 15 Abb. [N. S.], 349.)

The decree of the surrogate upon the accounting is equally conclusive against Johnson and his sureties in this collateral action. {Casoni v. Jerome, 58 N. Y., 315; Kelly v. West, 80 N. Y., 139 ; Dayton v. Johnson, 69 id., 426.)

"We conclude the surrogate of Broome county had jurisdiction to issue letters of administration ; that letters were duly issued; that the bond is good and valid, and that the surety is bound in the action by the accounting had in the Surrogate’s Court as to the amount of Johnson’s indebtedness to plaintiff. The apparent defects and omissions are not such as affect the surrogate’s jurisdiction or render void his proceedings. The surety should, therefore, be held to the responsibility which he assumed voluntarily when he signed the bond.

The judgment should be affirmed, with costs.

Learned, P. J., and Bogkes, J., concurred.

Judgment affirmed, with costs.