By the Court.—Freedman, J.
—The court of appeals has held that the surrogate, in granting lettters upon the estate of the plaintiff, who was not then dead, acted judicially ; that under the statutes of thM State, he had'jurisdiction to issue the letters upon a judicial inquiry and determination by him, that death had occurred; and hence, that the letters so granted protected the defendant as an innocent third party as to the amount paid to the administratrix on the faith of the letters, though they were, in fact, granted on false evidence.
This determination was made upon the construction of the statutes of this State regulating the jurisdiction and proceedings of surrogates’ courts, and it was held, that the said statutes furnish a complete system ; that in enacting the same, the legislature intended to confer upon surrogates’ courts sole and exclusive jurisdiction over the subject of granting letters of administration, and as part of that jurisdiction to determine, upon sufficient evidence, the facts upon which their action must rest; that, if the case be a proper one, the surrogate must act and issue letters ; and that thereupon the letters so issued are conclusive evidence of the authority of the administrator, until reversed on appeal or revoked.
The conclusion was reached by a vote of four to three, and in the prevailing opinion of Earl, J., it was conceded that the question decided was not free from doubt; that a decision either way would be confronted with some authority, and meet with some logical difficulties.
[226]*226As far as it goes, the decision, rests upon the assumption that there was a judicial inquiry into, and determination of, the question of death, by the surrogate, in due course of judicial proceedings.
It has now been shown, however, and the court below has found as facts, that the'petition was presented, not to the surrogate, but to the clerk in the office of the surrogate, who was entrusted by the latter with the duty of entertaining such applications ; that said clerk drew up the petition, swore the applicant thereto, passed upon the sufficiency of the evidence presented, and thereupon either himself filled up, or caused another clerk to fill up, a printed blank form of letters of administration signed in "blank by the then surrogate of the city and county of Hew York ; that upon said blank being filled up, said first-named clerk attached thereto the seal of said surrogate’s court, and delivered the same to the applicant upon the execution by her of the bond required by statute ; and that the then surrogate of the county of Hew York neither saw the applicant, nor the petition, nor the letters of administration, after the same had been filled out as aforesaid, and gave no instructions in respect to or regarding the issuing of the said letters. ’
Upon these facts and findings, which were not before the court of appeals, and plaintiffs’ exceptions to the main conclusions of law found by the learned judge below, two important questions arise,—namely, first, as to the competency of the testimony establishing these facts, and secondly, as to the effect to be given to the facts as found.
As to the competency: The court of appeals having held that the jurisdiction to issue letters in this case depended, not on death in fact, but on the judicial determination of the surrogate, made after a judicial inquiry, that death had occurred, it seems to follow as a logical and necessary conclusion, that if there were [227]*227no such judicial inquiry and determination, the fact on which the jurisdiction to issue the letters depends, is wanting, and the letters are without jurisdiction, and void.
Such want of jurisdiction may be shown by proof outside of the record, for no court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in a particular case, can make a valid record, or confer any rights.
In Bolton v. Jacks, 6 Robt. 166, in which case the authorities on this point were examined by this court with great particularity, the rule was stated as follows : “Want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general, limited or local jurisdiction, or of record or not; and the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only primafacie evidence of the facts recited; and the party against whom a judgment is offered, is not, by the bare fact of such recitals, estopped from showing, by affirmative facts, that they were untrue.”
In Boiler v. The Mayor, &c., 40 N. Y. Superior Ct. 523, this court was called upon to, and did, re- • examine the rule thus laid down, in the light of the criticism which Bolton v. Jacks had undergone in the court of appeals in the case at bar, and the conclusion was reached that, though the soundness of the decision was impugned in so far as it proceeded upon the assumption that the habitation of a testator at the time of his death was a jurisdictional fact, which, if erroneously decided by the surrogate in admitting a will to probate, might be collaterally attacked,
It having therefore been already decided that there is nothing in the language of the court of appeals in the case at bar inconsistent with the general doctrine of Bolton v. Jacks, the case last referred to must be considered as a controlling authority in favor of the competency of the testimony adduced by the plaintiff in opposition to the letters relied upon by the defendant.
As to the effect of the testimony: Surrogates’ courts [229]*229are courts of limited and special jurisdiction, and yet their jurisdiction to grant administration upon the estates of deceased persons is general and exclusive.
With respect to courts having general jurisdiction, the intendment of law is always in favor of the validity of their judgments. In regard to tribunals of limited and special jurisdiction there is no such intendment, and every fact necessary to uphold their jurisdiction must either appear by the record, or be affirmatively shown by evidence aliunde. In either case the bare recital of jurisdictional facts in the record is not conclusive, but only prima facie evidence of the facts recited.
In the present case the defendant introduced no proof outside of the record relied upon showing a judicial inquiry and judicial determination, and of the record the letters of administration simply recite the fact that Martha Divine departed this life intestate, which is not enough, as it has been determined that jurisdiction does not depend upon the existence of that fact, but upon a judicial determination of it made in the course of judicial inquiry.
This record and all presumptions properly arising therefrom, if any, the plaintiff meets with proof showing that whatever inquiry was made, was made, not by the judicial officer clothed with the powers of the surrogate, but by his clerk ; that whatever determination was had, was made in the like manner ; and that all this was done by said clerk, in the absence of the surrogate and without consultation with or instructions from him so far as this particular case is concerned.
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By the Court.—Freedman, J.
—The court of appeals has held that the surrogate, in granting lettters upon the estate of the plaintiff, who was not then dead, acted judicially ; that under the statutes of thM State, he had'jurisdiction to issue the letters upon a judicial inquiry and determination by him, that death had occurred; and hence, that the letters so granted protected the defendant as an innocent third party as to the amount paid to the administratrix on the faith of the letters, though they were, in fact, granted on false evidence.
This determination was made upon the construction of the statutes of this State regulating the jurisdiction and proceedings of surrogates’ courts, and it was held, that the said statutes furnish a complete system ; that in enacting the same, the legislature intended to confer upon surrogates’ courts sole and exclusive jurisdiction over the subject of granting letters of administration, and as part of that jurisdiction to determine, upon sufficient evidence, the facts upon which their action must rest; that, if the case be a proper one, the surrogate must act and issue letters ; and that thereupon the letters so issued are conclusive evidence of the authority of the administrator, until reversed on appeal or revoked.
The conclusion was reached by a vote of four to three, and in the prevailing opinion of Earl, J., it was conceded that the question decided was not free from doubt; that a decision either way would be confronted with some authority, and meet with some logical difficulties.
[226]*226As far as it goes, the decision, rests upon the assumption that there was a judicial inquiry into, and determination of, the question of death, by the surrogate, in due course of judicial proceedings.
It has now been shown, however, and the court below has found as facts, that the'petition was presented, not to the surrogate, but to the clerk in the office of the surrogate, who was entrusted by the latter with the duty of entertaining such applications ; that said clerk drew up the petition, swore the applicant thereto, passed upon the sufficiency of the evidence presented, and thereupon either himself filled up, or caused another clerk to fill up, a printed blank form of letters of administration signed in "blank by the then surrogate of the city and county of Hew York ; that upon said blank being filled up, said first-named clerk attached thereto the seal of said surrogate’s court, and delivered the same to the applicant upon the execution by her of the bond required by statute ; and that the then surrogate of the county of Hew York neither saw the applicant, nor the petition, nor the letters of administration, after the same had been filled out as aforesaid, and gave no instructions in respect to or regarding the issuing of the said letters. ’
Upon these facts and findings, which were not before the court of appeals, and plaintiffs’ exceptions to the main conclusions of law found by the learned judge below, two important questions arise,—namely, first, as to the competency of the testimony establishing these facts, and secondly, as to the effect to be given to the facts as found.
As to the competency: The court of appeals having held that the jurisdiction to issue letters in this case depended, not on death in fact, but on the judicial determination of the surrogate, made after a judicial inquiry, that death had occurred, it seems to follow as a logical and necessary conclusion, that if there were [227]*227no such judicial inquiry and determination, the fact on which the jurisdiction to issue the letters depends, is wanting, and the letters are without jurisdiction, and void.
Such want of jurisdiction may be shown by proof outside of the record, for no court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in a particular case, can make a valid record, or confer any rights.
In Bolton v. Jacks, 6 Robt. 166, in which case the authorities on this point were examined by this court with great particularity, the rule was stated as follows : “Want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general, limited or local jurisdiction, or of record or not; and the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only primafacie evidence of the facts recited; and the party against whom a judgment is offered, is not, by the bare fact of such recitals, estopped from showing, by affirmative facts, that they were untrue.”
In Boiler v. The Mayor, &c., 40 N. Y. Superior Ct. 523, this court was called upon to, and did, re- • examine the rule thus laid down, in the light of the criticism which Bolton v. Jacks had undergone in the court of appeals in the case at bar, and the conclusion was reached that, though the soundness of the decision was impugned in so far as it proceeded upon the assumption that the habitation of a testator at the time of his death was a jurisdictional fact, which, if erroneously decided by the surrogate in admitting a will to probate, might be collaterally attacked,
It having therefore been already decided that there is nothing in the language of the court of appeals in the case at bar inconsistent with the general doctrine of Bolton v. Jacks, the case last referred to must be considered as a controlling authority in favor of the competency of the testimony adduced by the plaintiff in opposition to the letters relied upon by the defendant.
As to the effect of the testimony: Surrogates’ courts [229]*229are courts of limited and special jurisdiction, and yet their jurisdiction to grant administration upon the estates of deceased persons is general and exclusive.
With respect to courts having general jurisdiction, the intendment of law is always in favor of the validity of their judgments. In regard to tribunals of limited and special jurisdiction there is no such intendment, and every fact necessary to uphold their jurisdiction must either appear by the record, or be affirmatively shown by evidence aliunde. In either case the bare recital of jurisdictional facts in the record is not conclusive, but only prima facie evidence of the facts recited.
In the present case the defendant introduced no proof outside of the record relied upon showing a judicial inquiry and judicial determination, and of the record the letters of administration simply recite the fact that Martha Divine departed this life intestate, which is not enough, as it has been determined that jurisdiction does not depend upon the existence of that fact, but upon a judicial determination of it made in the course of judicial inquiry.
This record and all presumptions properly arising therefrom, if any, the plaintiff meets with proof showing that whatever inquiry was made, was made, not by the judicial officer clothed with the powers of the surrogate, but by his clerk ; that whatever determination was had, was made in the like manner ; and that all this was done by said clerk, in the absence of the surrogate and without consultation with or instructions from him so far as this particular case is concerned.
Even if it be claimed, therefore, that as regards the letters in question the same presumption attaches as to jurisdiction and regularity that attaches in any other case to the judgment record of a court of original and general jurisdiction,—and this is the theory most favorable to the defendant,—the presumption,. it seems to [230]*230me, has been completely destroyed by affirmative and uncontradicted testimony to the contrary.
I concede that if the proof simply showed an erroneous or negligent or improper performance by the surrogate of his duty after he had acquired jurisdiction, the letters so issued would be good iñ law.
But the proof goes beyond that. It shows that he did not act judicially at all; that he refused to act in such cases ; that he considered the examination of the petition a mere ministerial function, and that he delegated that function to the clerk. Such delegation might not be open to legal objection, if the jurisdiction of the surrogate in issuing letters depended, as has been heretofore supposed, on the fact of death. But as the court of appeals has determined that the surrogate must act judicially, and that his jurisdiction in issuing letters depends upon a judicial determination to be made by him in the course of a judicial inquiry, the delegation of power referred to cannot be sustained, any more than the practice could be sustained, if the judges of a court of original and general jurisdiction were to authorize the clerk of their court, upon presentation of applications sufficient in form, to pass upon the sufficiency of the evidence produced, and the sureties offered, and if deemed sufficient, to fill up and issue orders of arrest, injunction, appointment of Receivers, and warrants of attachment,'Kyrhich had been previously signed by them in blank.
Judicial power cannot be delegated, because it involves the exercise of judgment and discretion (Powell v. Tuttle, 3 Comst. 396.; Keeler v. Frost, 22 Barb. 400).
True, a rrimisterial officer is protected in the execution of process whether the same issue from a court of limited or general jurisdiction, if the subject-matter of the suit is within that jurisdiction, and nothing appears upon the face of the process to show that the [231]*231person was not also within it, although the court have not, in fact, jurisdiction in the case (Savacool v. Boughton, 5 Wend. 171). And in Chegaray v. Jenkins (1 Seld. 376), this principle was extended to a constable acting under a warrant in due form, issued by the receiver of taxes of the city of New York, and directing the collection of a tax.
But this protection is confined strictly to ministerial officers who have no discretion, but are bound by law to execute the process entrusted to them. As to all other parties, the record, and the process issued thereon, may be impeached for want of jurisdiction. In Stanton v. Schell (3 Sandf. 323), cited by defendant’ s counsel, the judge had acquired jurisdiction under the non-imprisonment act, and hence it was held that subsequent errors of judgment did not oust him of his jurisdiction, nor subject him or the applicant to an action of trespass or false imprisonment.
It is insisted, however, that the proceedings before, and the action by the clerk in question, coupled with the surrogate’s own signature and seal, were a sufficient compliance with the statute; and in support of this proposition reference is made to ch. 201 of Laws of 1850. By that statute power is conferred upon the assistants appointed by the surrogate of the city and- county of New York, to administer and certify oaths and affirmations in all cases in which said surrogate is authorized to administer the same. By § 62 of ch. 460 of the Laws of 1837 a surrogate was authorized to administer oaths in all cases where it might be necessary in the .exercise of the powers and duties of such surrogate, and the power given to the assistants or clerks named in the statute of 1850 is that given to the surrogates by the act of 1837. It is a mere ministerial power, which was conferred for the purpose of relieving the surrogate of the city and county of New York from the detail of mere clerical duty, and that is the extent [232]*232of it as construed by the surrogate himself in the case of Daniel Clarke (1 Tucker, 119). But it does not include or confer authority to make a judicial inquiry or render a judicial determination.
The surrogate of the city and county of ¡New York is a constitutional officer, and to be elected. No provision of law exists which enables him to delegate his judicial functions to subordinates, nor can any existing statute be construed to work that result.
The case as now presented differs from that presented to the court of appeals in the particulars herein discussed, and the judgment appealed from cannot be sustained upon the facts as found.
The judgment should be reversed and a new trial ordered with costs to the appellant to abide the event.
Sanford, J., concurred.
The criticism here alluded to is to found in Judge Earl’s opinion (63 N. Y. 469), and is as follows: “In Bolton v. Jacks (6 Robertson’s Sup. Ct. R.), there is a learned discussion of the question of the jurisdiction of courts, and it was there held that if a surrogate [228]*228admitted to probate a will of a testator, not at the time of his death an inhabitant of his county, he acted without jurisdiction, and that his proceeding was void and could be attacked collaterally. I believe the decision to be unsound in this respect.”
It may be suggested that neither the reasoning which led the learned judge to the conclusion he arrived in the case then under consideration by him, nor the principle on which the decision of that case rests, affords ground for the criticism.
The case of Roderigas turned upon and was decided wholly on the effect of' section 26, art. 2, title 2, chap. 6, part 2, R. S., which the court held invested the surrogate with power to judicially inquire and examine as to the death of any person upon whose estate letters of administration were applied for, and to judicially determine as to such death; and that his judicial determination of death was conclusive, even though the fact were otherwise. The court, agreed that were it not for this section and the effect given it, jurisdiction would depend on death in fact.
This section of the R. S. has no application to the proof of wills.
The provision concerning the proof of wills is to be found in chapter 460 of the Laws of 1837, at p. 524.
Neither in that chapter nor in any other statute, is there any section or provision requiring the surrogate to inquire into the habitancy of the testator, or imposing on him any duty to make such inquiry, or authorizing or requiring him either to examine witnesses on that subject or to subpoena, or authorizing or requiring him to make any determination on that subject.
It would seem that a decision and reasoning founded on said section 26 of the R. S. cannot affect or impugn a decision made in a case to which that section has no application, and as to which there is no similar provision.