only is the present proceeding unauthorized | having entered and obeyed a decree of dison behalf of the petitioner, but that he has tribution that does not bind the petitioner, an absolute right to intervene in the ac- cannot invoke it as a shield at this time. If counting proceedings, open the same on mo- he is subjected to loss by reason of this fact, tion, and litigate his rights therein. We it is due wholly to his failure to avail himhave already pointed out that the motion to self of the protection which the law afforded open the proceedings is an appeal to the dis- him. cretion of the court, and that the petitioner herein could not be remitted to an uncertain remedy in a proceeding which resulted in a decree that does not bind him.

It is further argued that, assuming it to be an appeal to the discretion of the court, The order of the Appellate Division and nevertheless, the surrogate's court did exer- the decree of the Surrogate's Court of Moncise its discretion, and decided that the peti-roe County therein affirmed should be respectioner might intervene in the accounting tively reversed, with costs in all the courts proceeding. The record before us discloses to petitioner to abide the event, payable out no such decision, as the learned surrogate of the estate, and the case remitted to said simply intimated in his oral opinion that Surrogate's Court to proceed in accordance it was incumbent upon the petitioner to with the views herein expressed. come in under the accounting proceedings by petition or otherwise, and ask that it be opened. There is no intimation as to what disposition the court would make of that motion. We, however, regard this as wholly immaterial, as the decree in the accounting proceedings, for reasons already stated, is absolutely void as to this petitioner.

surrogate adjudged and decreed that they | pliance with that order, the filing of receipts were in fact cousins of the deceased, and from the distributees, and a decree of judithe only heirs at law and next of kin living.cial settlement and discharge. He also deHe ordered the administrator to make dis-nied Killeen's relationship with the detribution accordingly, which he did, and, ceased. An issue of fact was thus joined behaving filed his receipts with the surrogate, tween the petitioner and the administrator, a decree was entered discharging the admin- and the former was bound to show that he istrator from his trust. It will be seen that was, as he claimed to be, the brother of the this proceeding involved a decision of the is-deceased. The petitioner subsequently made sue of fact as to what persons constituted application to the surrogate for a commisthe sole next of kin of the deceased. Thesion to take testimony in Ireland to estab five cousins alleged that they were the sole lish his relationship, and a hearing was next of kin, and the administrator denied it. then had on the whole question with respect In determining the issue the surrogate de- to the petitioner's right to an accounting. cided that the five cousins were, in truth, The surrogate denied his application for a the sole next of kin, and before he could commission to take testimony, and also his reach that conclusion he had to determine application for an independent accounting, that the deceased died leaving no parent, on the ground, among others stated in his child, brother, or sister, since the cousins opinion, that the relief to which he was encould not be the sole next of kin if she had titled, if any, was to open the decree already left any nearer relative. The surrogate had entered, on notice given to the persons afjurisdiction of the question to be decided. fected thereby; and the appellate division He had jurisdiction of the fund to be dis- unanimously affirmed the order of the surtributed. He had jurisdiction of the ad- rogate. The petitioner was not cited by ministrator and the five cousins. Therefore name, and the surrogate found he was not it would seem that his decree of distribution a party to the prior proceedings in the surwas made with perfect jurisdiction of the rogate's court, under which the estate was subject-matter and of the parties, and so distributed and the administrator dislong as that decree stands it is obviously a charged, and his claim is that he has an abbar to this proceeding. If, upon that hear-solute right to institute an independent proing, the surrogate had found and adjudged ceeding against the administrator for an acthat the deceased left a brother surviving, counting in the same manner as if no acand that the present petitioner was that counting had ever been had, and the quesbrother, and that as such he was the sole tion involved in this case is whether the next of kin, and entitled to have the estate former decree of discharge does not protect distributed to him, no one, I think, can the administrator against this proceeding, doubt that it would be a perfect judgment in and remit the petitioner to an application his favor, available to him, and good as to open the decree, or some other remedy. against all the world until opened, reversed, The contention in behalf of the petitioner or set aside, although he was not a party; is that the former decree of distribution was and for the plain reason that the court had absolutely void as to him, and of no more power to make it; and, if he had power to effect with reference to this proceeding than render a judgment in his favor, he had the if it had never been made. This seems to same power to render it against him and in me to be the radical and fundamental error favor of the five cousins, and the judgment that pervades the whole argument in suphas the same binding effect in the one case port of this appeal. It is a general and as in the other until vacated or reversed in universal rule that, where general jurisdicsome direct proceeding for that purpose. tion is given to the surrogate's court over About a year after the discharge of the such a subject, and that jurisdiction depends administrator the petitioner, who signs his in a particular case upon facts which must name as Martin Killeen,-a different name be brought before the court for its deterfrom that of the deceased, and a resident mination upon evidence, and where it is reof Ireland, filed a petition with the surro- quired to act upon such evidence, its decigate, alleging that he was a brother of the sion upon the question of jurisdiction, as intestate. His petition set forth the issuing against all the world, is conclusive until reof letters to the administrator, claimed that versed, revoked, or vacated, so far as to prono account had been made, and asked for a tect its officers and all other innocent percitation directing him to account. There- sons who acted upon the faith of it. It freupon a citation was issued directing the ad- quently happens that a surrogate makes an ministrator to show cause why he should order or decree in which the wrong party is not render an account, and on the return appointed, or administration is granted even day January 23, 1901-the administrator in cases where the person alleged to be dead filed an answer setting forth his accounting is still living; but, as that court has jurisin the estate, the order of distribution, com-diction to inquire with reference to all these

facts, its orders and decrees have been held | had once distributed under an order of the to be conclusive, even when infected with a court that unquestionably had jurisdiction, radical error of fact, at least until revoked, and whose decrees he was bound to obey. vacated, or set aside. Kelly v. West, 80 N. The well-considered case of Exton v. Zule, Y. 139; Roderigas v. East River Sav. Inst. 14 N. J. Eq. 501, is identical in its facts 63 N. Y. 460, 20 Am. Rep. 555; Bolton v. with this case. There, as in this case, a Schriever, 135 N. Y. 65, 18 L. R. A. 242, 31 new claimant without notice claimed that N. E. 1001; Staples v. Fairchild, 3 N. Y. 41; | distribution of the estate was made to the Potter v. Ogden, 136 N. Y. 384, 33 N. E. wrong parties in disregard of his rights, 228; Porter v. Purdy, 29 N. Y. 106, 86 Am. without notice of a hearing to him; and Dec. 283; Redf. Surrogate Ct. Pr. 5th ed. the court very properly said: "It may be 865. In this case it is very clear that the true that neither the first nor the second set surrogate had jurisdiction to decide as to of claimants are the real next of kin of the what persons, as matter of fact, constituted intestate, that the parties actually entitled the sole next of kin of the deceased, and he are yet undiscovered. But this will not audid decide that the five cousins were; and thorize the orphans' court, upon every new involved in that decision is the finding that ray of light that may be received, to set the deceased, died leaving no parent, child, aside their own decree lawfully made, and brother, or sister, since the cousins could compel the administrator to pay the estate not be the sole next of kin if she died leav- over again to every new claimant. It is ing any nearer relative. What the peti- the duty of the court, before the decree of tioner wants is an opportunity to retry that distribution is made, to see that the case is question. He claims that he has new evi- clearly proved. If there be reasonable room dence on the point, which, if received, would for doubt as to the rights of the parties, show that the former finding of the surro- the decree should be denied. When once gate in favor of the five cousins was an er- made, and not appealed from, it operates as ror of fact. He has a right to be heard and an effectual shield to the administrator, and to give that evidence, but not in an inde- protects him against all other claimants. pendent proceeding which utterly ignores If a party entitled to a distributive share is what had been decided before. The surro- by the decree deprived of his rights without gate, in deciding that the five cousins were actual notice, and without a hearing, his the sole next of kin, acted judicially, and his only remedy is against the distributees who jurisdiction thus adjudged cannot be im- have received the estate." 14 N. J. Eq. peached collaterally. It can be attacked 514. only directly in a proceeding for that pur- I think this proceeding was not authorpose or by appeal. If it were otherwise, and ized by any law of this state, and that the the petitioner were to succeed in his appli- decisions of the courts below to that effect cation for an independent accounting, and are clearly right. It is a case where the establish his relationship as a brother of the petitioner has mistaken his remedy. He has deceased, the effect would be to have two a right to open and intervene in the prodecrees of distribution in one estate to en- ceeding that resulted in a decree of distributirely different parties, made by the same tion and the discharge of the administrator. court. In this case we would have one de- There are other remedies to which the claimcree directing distribution to be made to the ant could resort. By the provisions of the five cousins, and another decree, made after Code (§ 2481) authority is conferred upon the administrator had been discharged, di- the surrogate "to open, vacate, modify, or recting distribution to the petitioner. More-set aside, or to enter as of a former time a over, if this proceeding can be entertained, decree or order of his court . . . for the administrator, although he has accounted and distributed the fund under the order of the surrogate, must again account, and pay over again to the new claimant. But that is not all. If, after responding to that demand, another party should appear, claiming that he was the husband of the deceased, and as such entitled to the personal estate in preference to all other relatives, and the claim should be entertained and established in an independent proceeding, the administrator would have to respond for a third time for the estate that came to his hands. Thus the administrator would be compelled to litigate during his life with genuine or spurious claimants for an estate that he

fraud, newly-discovered evidence, clerical error, or other sufficient cause." The petitioner could have invoked, and was bound to invoke, this power, if he desired to be heard with respect to his claim. There is but one answer to this proposition, and that is, that since it was in the discretion of the surrogate to grant or refuse such an application, the claimant was not bound to resort to it. While some of the powers conferred upon the surrogate by this section undoubtedly are discretionary, the petitioner had the absolute right to intervene, and the surrogate had no discretion to refuse his application, since he claimed to own the estate, and was deprived of his property by a decree to

ing to entertain this proceeding. The supreme court has concurrent jurisdiction of matters of accounting by administrators, and the petitioner had a right to bring an action for that purpose. If that court had ordered distribution, and discharged the administrator, as the surrogate did, no one, I think, would claim that the decree was void, or that the claimant, though not served, had any other remedy than to apply to open the decree and come in to defend and prove his claim. Nor could it be asserted that in such a case the right to defend might be refused in the exercise of discretion. There cannot be, in this respect, one law for the supreme court, and another and different law for the surrogate's court. If the claimant could only apply to come in, in case the accounting was had in the supreme court, he has no other remedy under the same circumstances where the accounting was in the surrogate's court, and certainly not the remedy sought in this proceeding.

which he was not a party. It is quite conceivable that under our probate laws administration may be taken out upon the estate of a living person, and his property distributed under a decree; but if that person, after the decree was entered, appeared before the surrogate's court with proof that he was the person alleged to be dead, and whose property was distributed, demanding that the decree be opened or set aside, he would be entitled to a hearing and the relief as an absolute right. Any other view would lead to consequences most unjust and absurd. There are various analogous provisions of law on this subject, which show that a party situated as this claimant is, or claims to be, has an absolute right to intervene. By § 445 of the Code, where service is made by publication, and there is no appearance, it is provided that a party must be admitted to defend, if he applies within seven years after the filing of the judgment roll, where there has been no personal service upon him of a written notice of the entry of the judgment. The right secured by that section is not subject to discretion. People v. Albany & U. R. Co. 77 N. Y. 232; Earle v. Hart, 20 Hun, 75. But even if it be true that the right to open the former decree and to be heard was subject to the discretion of the surrogate, that question has no application to this appeal, since the discretion was ex-mentioned in the citation, and since it was ercised in favor of the claimant, and he was permitted to come in and try the question as a party to the first accounting. Therefore, so far as this claimant is concerned, it is of no consequence whether the right which was conceded to him at the hearing was absolute or discretionary.

The surrogate found that he issued and served a citation by publication on the creditors, heirs at law, and next of kin of the deceased. At the request of the claimant he found that he was not cited, or a party to the accounting. All that can be meant by this finding is a conclusion on the part of the surrogate that, since his name was not

not addressed to him, he therefore was not a party, and was not cited. The whole fabric of error in this case is built upon this slender superstructure. I will not now stop to inquire whether the surrogate was bound to pass upon requests presented to him. I had supposed that the Code had done away The surrogate, on the accounting, had an with that practice. It certainly has in some issue of fact to try, and that was whether cases. § 1022. But I do not regard the findthe five cousins of the deceased to whom ing, if it can be called one, of the slightest the estate was distributed were in fact the consequence. It is universally held and unsole next of kin of the deceased. He found derstood that orders and decrees in probate that they were, and therefore he necessarily courts are not made between party and found that the claimant is not her brother. party, but are in the nature of judgments in Now, the fact may have been determined er- rem that are good against all the world, even roneously, and against the truth, but it can- against persons who are not cited. All that not be denied that the surrogate had com- is necessary is that the court obtain jurisplete jurisdiction of the question, and, if diction, and it is conceded that the decree of there was any error at all in his decision it distribution in this case was binding on the was an error of fact, and the claim-administrator, and therefore made with ju ant had, and still has, an absolute right to risdiction. Such judgments are not in perappeal from that decision of the surrogate sonam, but generally adjudge the status of and from the decree of distribution either a person or a thing. In this case the defor an error of law or fact or both, and on cree adjudged that the claimant was not the the hearing of that appeal he has an abso- brother of the deceased, and hence it deterlute right to give proof to show that he is mined his status or relationship to the dethe sole next of kin, and that the five ceased. It likewise determined the disposicousins are not. Code Civ. Proc. §§ 2568, tion to be made of the fund, which was the With these remedies open | thing or res over which the court had juristo the petitioner, it is very difficult for me diction. When the surrogate got jurisdic to see that the surrogate committed an er- tion of the question as to what persons conror of law reviewable in this court for refus-stituted the next of kin, the fact that the

2569, 2576, 2586.

present claimant was not a party is wholly immaterial. The judgment is good as against all the world until it is opened, vacated, or reversed. Exton v. Zule, 14 N. J. Eq. 501; Clemens v. Clemens, 37 N. Y. 73; Herman, Estoppel, §§ 45-48, 290-297, 326330; Black, Judgm. § 635; Freeman, Judgm. § 3196; 2 Smith, Lead. Cas. 812, 813. Anyone who will read the case first above cited will find it difficult to distinguish it from this. It covers the whole ground involved here, and even more.

favor by the surrogate, and he was permitted to come into the original proceeding. We have seen that at least three distinct remedies were open to the claimant, if he is in fact entitled to the estate of the deceased as her sole next of kin. Those remedies were: First, a motion to open the former decree; secondly, an appeal from that decree; and, thirdly, to invoke the jurisdiction of a court of equity in regard to the whole controversy by an action in which the five distributees could be made parties, and could be decreed It may be profitable to stop and inquire to restore the fund distributed to them if the for a moment as to the power of the sur- claim of the petitioner should be established. rogate in case it is held that this proceeding But it seems that for some reason no remis authorized by any law. Of course, the edy will answer the purposes of the claimproceeding is utterly futile unless the surro-ant unless he is permitted to entertain this gate has power in an independent and col- independent proceeding, which ignores all lateral application, such as this is, to disregard or set aside his former decree which the administrator obeyed, and was then discharged from his trust, and to make a new decree that the administrator pay to this claimant the money which he paid to others under a decree where there was perfect jurisdiction. Can he, in this proceeding, set aside his former decree, and order the administrator, who has been discharged, to account and pay again, simply because that decree is claimed to be affected by an error of fact; for that is all that can be alleged against it? That would plainly mean that he may review his own judgments and correct his own errors of law and fact, not upon any appeal to him for that purpose, but in another and collateral proceeding. The general powers of a court of equity do not be long to a surrogate's court, and that court has no power in this or any other independent proceeding to set aside or disregard its own decree of distribution, and the order discharging the administrator, even though either or both orders were affected by fraud. Re Randall, 152 N. Y. 508, 46 N. E. 945; Sanders v. Soutter, 126 N. Y. 193, 27 N. E.

263.

It would be a novel proceeding for a surrogate, on the petitioner's application, to enter upon the trial of a question of fact whether he or the five cousins, who have received the money, are the sole next of kin of the deceased. That very question he tried and decided once before, and his judgment remains in full force, and is a complete protection to the administrator, as this court, in principle, has just decided. Platt v. New York & S. B. R. Co. 170 N. Y. 451, 63 N. E. 532. If the claimant has any case at all, it is clear that he has mistaken his remedy, and has adopted a method of procedure that cannot be tolerated in the administration of estates; and this would be so even though his right to intervene is discretionary, as his counsel claims, since the discretion, if it exists under the law, was exercised in his

that has been done as absolutely void, although the administrator has been discharged from his trust after having distributed the estate that came to his hands in accordance with the decree of a court of competent jurisdiction. No one questions the proposition that the administrator was bound to obey that decree, and it is a universal rule that a trustee who acts in obedience to a decree or judgment of a court of competent jurisdiction is protected from any future personal attacks by that decree. In this case the decree of distribution is a shield and protection to the administrator and to the five distributees until it is vacated or set aside, and, if that is so, this petitioner has no right to attack the administrator in this independent and collateral proceeding. The administrator being bound to obey the decree, it would be quite absurd to hold that it is no protection to him, although upon its face it is regular, but that he must respond to new claimants from time to time as they may appear.

Assuming all the facts stated in the claimant's petition to be true, he can accomplish nothing in this proceeding. He must first get rid of the order discharging the administrator and the decree directing distribution. It is not enough to say that he was not a party to this proceeding so long as the court had jurisdiction over the fund, the administrator, and the distributees. The court could have made a complete and binding decree in the claimant's absence, since the very question before it was with respect to the persons constituting the next of kin of the deceased. These orders did not conclude the petitioner in the sense that he may not be heard in the proper court in the proper proceeding, but they protect the administrator and the distributees until reversed or vacated. It is very obvious that the petitioner must invoke the broad powers of a court possessing general equity jurisdiction in order that he may