the limited powers of courts of law were | ter into the contract was sufficient to justify inadequate for the purpose. This jurisdic- the court in setting it aside, and she does tion was expressly rested upon the general not in any manner attempt to deny that she power to vacate contracts in all cases where was guilty of the fraud charged." they had been procured by fraud. From this general jurisdiction of equity a contract of marriage was not regarded as being excepted when the assent to it was the result of artifice or of gross fraud. See Ferlat v. Gojon, Hopk. Ch. 478, 14 Am. Dec. 554; Burtis v. Burtis, Hopk. Ch. 557, 14 Am. Dec. 563. If, as it was observed by Chancellor Sanford in Ferlat v. Gojon, Hopk. Ch. 478, 14 Am. Dec. 554, no instance of the exercise of this jurisdiction was to be found in England, it was because the ecclesiastical or spiritual courts had cognizance of matrimonial causes; but he said "the jurisdiction of equity in cases of fraudulent contracts seems sufficiently comprehensive to include the contract of marriage." Our attention has been called to cases in the courts of this state and of other states which seem to hold a different doctrine upon the subject of the judicial annulment of a marriage contract. Whatever may be said in explanation or in differentiation, I think it is sufficient that we rely upon the plain provision of our statute and upon the application to the case of a contract of marriage of those salutary and fundamental rules which are applicable to contracts generally when determining their validity. If the plaintiff proves to the satisfaction of the court that through misrepresentation of some fact which was an essential element in the giving of his consent to the contract of marriage, and which was of such a nature as to deceive an ordinarily prudent person, he has been victimized, the court is empowered to annul the marriage. Such was the judgment of the trial court upon the facts in this case, and I think that the who concurred in reversing that judgment, were in error in holding that the law of this state afforded no remedy to the plaintiff. In Scott v. Shufeldt, 5 Paige, 43, the action was to annul a marriage which the plaintiff had been induced to enter into in order to escape proceedings under the bastardy act, which the defendant had brought|learned justices of the appellate division, against him, upon her oath that he was the father of her child. He subsequently ascertained that the child was by a negro. Chancellor Walworth held that, "if the mother, at the time she charged him [the complainant] as the putative father, and induced him to marry her, under the supposition that the child might possibly be his, knew it was not his child, but that it was the child of a negro, she. intentionally defrauded the complainant in such a manner as to authorize this court to declare the Martin, Cullen, and Werner, JJ., conmarriage contract a nullity." The power cur. that was deemed by the court of chancery to be inherent in the court in the exercise The order appealed from should be reversed, and the judgment entered upon the findings of the Special Term should be affirmed, with costs to the plaintiff in the Appellate Division and in this court. Parker, Ch. J., and Bartlett, Haight, Martin KILLAN, Appt., of its equitable jurisdiction in cases of Re ESTATE OF Mary KILLAN, Deceased. fraud was soon thereafter expressly conferred upon the courts by the legislature of v. Killan, Deceased, Respt. (172 N. Y. 547.) the state. In Blank v. Blank, 107 N. Y. 91, Miles T. O'REILLY, Admr., etc., of Mary 13 N. E. 615, the action was to set aside a judgment annulling a marriage contract between the parties upon the ground that the plaintiff (the former wife) had been induced, by untrue statements as to the law, 1. to refrain from defending the action. The fraud upon which the action to annul the marriage had been based consisted in the woman's representation that she was a widow, whereas she had been collusively divorced from a former husband, who was still living. In affirming the judgment in favor of the defendant, it was said by Judge Rapallo, in the opinion, that, "whether the marriage between the defendant and the plaintiff was legal or illegal as matter of III. By proceeding in the court in which de law, the fraud by which she was charged with having induced the defendant to en A brother of an intestate, who is not made a party to an accounting of the administrator, may treat the proceedings in which the accounting was had as void, and institute new proceedings to comNOTE.-Remedy of distributee as to accounting of which he had no notice and on which he did not appear. I. Nature of proceeding for accounting, settlement, and distribution, 96. II. By appeal from the judgment or decree, 97. cree was made. a. To open the decree, 98. b. By new action or proceeding, 100. surrogate that the next of kin of an intestate, who was not made a party to the administrator's accounting, cannot institute a proceeding for a new accounting, but must come in under the former decree, present a question of law for the appellate court. (O'Brien, Haight, and Werner, JJ., dissent.) (December 9, 1902.) APPEAL by petitioner from an order of the Appellate Division of the Supreme Court, Fourth Department, affirming a decree of the Monroe County Surrogate which dismissed a proceeding instituted for the judicial settlement of the accounts of the administrator of Mary Killan, deceased. Re versed. The facts are stated in the opinions. solute 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 which he was not a party. That, assuming all the facts I. Nature of proceeding for accounting, settle- claimed by the petitioner to be true, he could ment, and distribution. In RE KILLAN'S ESTATE, in which the decree of the surrogate, and the unanimous opinion of the appellate division of the supreme court affirming the same, were reversed by a bare majority, the position of the majority judges was that, by the neglect of the administrator to cite persons unknown, the surrogate did not acquire jurisdiction judicially to settle the administrator's account,-make distribution, and discharge the administrator; and that the proceeding was, therefore, absolutely void as to the petitioner. That, this being so, the situation, so far as the petitioner was concerned, was the same as though there had been no accounting or settlement, and he was entitled, under the provisions of the Code, to call upon the administrator to render an account of his proceedings and have the same settled; and that this was a matter of absolute right, and, therefore, the petitioner was not to be relegated to an application to open or vacate the former decree, which was not a matter of right, but was addressed to the discretion of the court. The position of the judges who dissented was that, while the petitioner had a right to be heard and give evidence tending to show that he alone was entitled to the residuum of the estate, being the sole next of kin of the intestate, and that the former finding of the surrogate in favor of the persons among whom the estate had by the decree been distributed was an error of fact, he had no right to do so in an independent proceeding which utterly ignored what had been decided before. That the surrogate had jurisdiction of the fund to be distributed, and, therefore, of the question to be decided; and his jurisdiction could not be impeached collaterally, but could be attacked only directly in a proceeding for that purpose, or by appeal. That orders and decrees in probate courts are not made between party and party, but are in the nature of judgments in rem, that are good against all the world, even against persons who are not cited. That in this case the petitioner had the ab accomplish nothing in this proceeding, as he must first get rid of the order discharging the administrator and the decree directing distribution; and that it was not enough to say that he was not a party to the proceeding, so long as the court had jurisdiction over the fund, the administrator, and the actual distributees. The office of this note will be to discover and set forth the remedy of one who claims to have been deprived of his rightful share in the estate of a decedent by a distribution made upon an accounting in which it will be assumed that he did not receive the notice thereof which the law entitles him to, and which he in no manner waived. In doing this, it has been deemed best, before discussing the several cases on the subject in their classified order, to take up a few which do not necessarily specify a particular remedy, but which describe and characterize the proceeding to distribute the estate of a decedent. or The rule that, in order to give a binding effect to a judicial decision, the court must have jurisdiction of the subject-matter and of the parties, applies more especially to contest between party and party as to personal rights. And so in the distribution of an intestate estate the subject-matter-the property-is within the jurisdiction of the court; and the judgment, by determining who are entitled to distributive shares, and extending to the entire estate, determines that no other persons are entitled, and is necessarily conclusive, because nothing further remains to be distributed. Loring v. Steineman, 1 Met. 208. This, of course, is where the notice required, either by statute, or, in the absence of the letter, by the rule or order of the court, to persons entitled as distributees by law, has been given. The conclusive effect of judgments of probate and other courts exercising similar pow ers, upon all matters within their jurisdiction, is generally maintained in the several states. But, although the probate court has jurisdiction over the subject-matter, yet, if it clearly exceeds its powers, or does an act prohibited D. Short, for appellant: Mr. George D. Peck, with Mr. Myron Div. 568, 42 N. Y. Supp. 80; 1 Freeman, Judgm. 4th ed. §§ 117, 120a, p. 191; Julian v. Woolsey, 87 Hun, 326, 34 N. Y. Supp. 321; Re Kimball, 18 App. Div. 320, 46 N. Y. Supp. 177; Redf. Surrogate Ct. Pr. 5th ed. p. 826. The proceeding which resulted in the alleged decree of February 7, 1900, was not binding or in any way conclusive upon the appellant, as the surrogate's court acquired no jurisdiction of his person. Re Killan, 66 App. Div. 312, 72 N. Y. Supp. 714; N. Y. Code Civ. Proc. §§ 2742, 2743; 1 Freeman, Judgm. 4th ed. § 154, p. 277; Hood v. Hood, 19 Hun, 300. The alleged decree of February 7, 1900, being absolutely void and inoperative as to the appellant, he was at liberty wholly to disregard it. Beardslee v. Dolge, 143 N. Y. 165, 38 N. E. 205; Ferguson v. Crawford, 70 N. Y. 254, 26 Am. Rep. 589; Dutton v. Smith, 10 App. by law, its decree may be avoided in collater- | al proceedings as well as by appeal; but this is only one way of saying that, where the jurisdiction of the court over the subject-matter is in any particular limited, then its decree is not binding if it oversteps the limits fixed, as in such case it is not the indiscreet exercise of the power granted, but the doing of an act for which no power is given, or which is expressly prohibited. Pierce v. Prescott, 128 Mass. 140. A decree of allowance and confirmation in the settlement of the estate of an intestate, as well as a decree of distribution, is a proceeding in rem, analogous to proceedings in admiralty, and, unless removed by appeal, finally determines the rights of all persons to the property in question, whether they are sui juris, or under disability. Search v. Search, 27 N. J. Eq. 137. But see Steen v. Steen, 25 Miss. 514, infra, III. b; Wood v. Myrick, 16 Minn. 494, Gil. 447, infru, IV. II. By appeal from the judgment or decree. It is generally conceded that the remedy by appeal from the decree may always be exercised, and so that remedy has rarely been questioned; and the following cases show that it is the ordinary method of reviewing the matters involved in the decree. Where a person entitled to a distribution in an estate had died while the estate was in process of administration, and the probate court, instead of bringing his personal representative before it, rendered a decree on final settlement distributing his share directly among his children, his administrator was by petition, and for the purpose of bringing an appeal from the decree, made a party to it, the decree was reversed. and the cause remanded; the court stating that it had repeatedly held, that, where a person entitled to distribution of an estate dies. It is error to proceed to final settlement without his personal representative. McConico v. Cannon, 25 Ala. 462. Where the probate judge made a decree upon the application of the executor, distributing a large amount of confederate money unequally among the distributees, and, upon the reception of a check for the money, entered satisfaction, of which proceeding the distributees had no notice, the decree was reversed, the court saying that the same should not have The remedy and proceeding instituted by petition and citation by the appellant in the surrogate's court was the proper one, and the one expressly authorized by statute. N. Y. Code Civ. Proc. subd. 1, §§ 2726, 2727; Jessup, Surrogate's Pr. p. 1304; Redf. Surrogate Ct. Pr. 5th ed. p. 768; 1 Freeinan, Judgm. 4th ed. § 190, p. 347; Hood v. Hood, 19 Hun, 300, 85 N. Y. 561; Dutton v. Smith, 10 App. Div. 566, 42 N. Y. Supp. 80; Re Lamb, 10 Misc. 638, 32 N. Y. Supp. 225; Jenkins v. Young, 35 Hun, 569; Denbeen rendered without notice. Gardner V. Gardner, 42 Ala. 161. The article of the Louisiana Code which authorizes an executor who desires authority of the court of probate to pay creditors to call upon all persons concerned to appear and file their opposition, while it will prevent an heir who is negligent in opposing payments to creditors to contest their legality, has no application to the case of an executor who seeks to distribute the proceeds of an estate among the heirs. This must be done vocatis vocandis, and the persons concerned are not to be cited in the mode prescribed by the article before mentioned, which must be restricted to cases in which nothing is sought but the sanction of the court to the payment of creditors; and a person entitled to distribution in the estate of a decedent, who has had only such notice, will be entitled to a reversal on appeal from the decree made by the court of probate, and the fact that he had been present and subscribed the inventories will not preclude him from being entitled to the notice provided by the Code of Practice. Millaudon v. Cajus, 6 La. 222. Where the judge of probate did not, before an order of partition was made by him, cause the several persons interested in the said es tate to be notified thereof that they might have opportunity to be heard upon the subject involved therein, the supreme court reversed his decree. Ex parte Robinson, 1 D. Chip. (Vt.) 357. However the proceedings of a court of probate might formerly be avoided by plea, on account of any irregularity, it must now be held that, if the court acts within its jurisdiction as to the subject-matter of its decisions, as to the persons to be affected, and as to the course of proceedings prescribed for it by law, its decisions are binding and conclusive upon all parties interested. They may be heard and reexamined upon appeal, which is the mode appointed for the correction of its errors; but they cannot be questioned or impeached collaterally in any other court or course of proceedings, unless fraud is alleged. Tebbets v. Tilton, 24 N. H. 120. Where statutes in regard to the final account of an executor or administrator provide that, before the time appointed for the hearing and settlement thereof, the executor or administrator shall file with the clerk of the court he ing jurisdiction a copy of the notice thereof ton v. Ontario County Nat. Bank, 150 N. Y. | 327; Re Baldwin, 87 Hun, 372, 34 N. Y. 126, 44 N. E. 781; Jackson ex dem. Antell Supp. 435; Beards v. Wheeler, 76 N. Y. v. Brown, 3 Johns. 459. 213; Abram French Co. v. Marx, 10 Misc. 384, 31 N. Y. Supp. 122. A motion either to open or vacate a decree is, without exception, addressed to the discretion of the court. No one has a legal right to demand that a decree once regularly entered and enrolled be set aside upon motion. Where the decree is not even presumptively binding upon the appellant, the courts are prone to leave a party who asks to open or vacate such a decree to his remedy. And the question naturally suggests itself, What could that remedy be in this case other than the one adopted by the appellant? Foote v. Lathrop, 41 N. Y. 358; McCunn's Estate, 15 N. Y. S. R. 712; People ex rel. Brush v. Brown, 103 N. Y. 684, 9 N. E. with proper proof of its publication in the man ner required by law before a final account can be heard, adjudged, and settled, so as to be of binding force upon the creditors, heirs, and legatees, such statutes must be observed; and. unless they are, the court is without competent authority to make a decree allowing or disallowing the account. Dray v. Bloch, 29 Or. 347, 45 Pac. 772. This was an appeal from the decision of the court of probate, which had filed and approved a supplemental account without notice to cred itors and heirs of the estate. See also Jennison v. Hapgood, 7 Pick. 1, 19 Am. Dec. 258, infra, III. a; O'Neil's Appeal, 55 Conn. 409, 11 Atl. 857-infra, IV. The surrogate has no power to open or vacate the decree of February 7, 1900, upon the application of the appellant, a stranger to the record, under such circumstances as this case presents. Wait, Fraud. Conv. 3d ed. § 270, p. 476; Re Soule, 72 Hun, 594, 25 N. Y. Supp. 270; Yale v. Baker, 2 Hun, 468; N. Y. Code Civ. Proc. § 2481, subd. 6. Appellant is entitled to the benefit of the assumption of the truth of the allegation in the petition that there had been no accounting by the administrator. Kennedy v. New York, 73 N. Y. 365, 29 Am. Rep. 160; Eddy v. Ellicottville, 35 inal settlement the distribution is ancillary to he settlement, and no other notice is required. And in this case all the notice required by statute was given. Ibid. For further statement as to this case, see nfra, V. The county court, which, in Wisconsin, is clothed with probate jurisdiction, has the power, on the application of legatees, to open a settlement and distribution made by the administrator with the will annexed of a decedent, distributing the estate to himself. by virtue of assignments to himself obtained from such legatees by him in fraud of their rights. Creamer v. Ingalls, 89 Wis. 112, 61 N. W. 82. An original bill in chancery cannot be maintained to recover from one who has received a III. By proceeding in the court in which decree portion of the estate of a decedent after the was made. a. To open the decree. In RE KILLAN'S ESTATE, the surrogate's court, the appellate division of the supreme court, and the dissenting judges of the court of appeals united in asserting that the person claiming to have been deprived of his share of the estate must address his claim for relief to the court in which the decree for settlement and distribution had been made, and that he was remediless so long as that decree remained in force. Where the administratrix had made no final settlement of her administration, and had not paid the distributees under this order, the whole matter was declared by the court to be in fieri. And, where an order of distribution had been made which was void as to the heirs by reason of their not having had due notice, the probate court had power to retrace its steps and make a new distribution. Long v. Thompson, 60 Ill. 27. distribution thereof under an order of the probate court, to recover from him a ratable pro portion of the estate to which the plaintiff claims to be entitled, and whose claims had been overlooked or disregarded in the distribution; and a bill alleging such facts will be dismissed on demurrer, as the probate court has exclusive jurisdiction over the distribution of the estate of intestates, and the remedy for an error committed to the prejudice of any person is in that court, and not by an original bill in chancery. Gaines v. Smiley, 7 Smedes & M. 53, 45 Am. Dec. 295. The opinion does not state whether the action in the probate court to remedy the error should be in the original proceeding or by instituting a new one. As to all accounts and proceedings in the probate court, where upon the face of them that court has jurisdiction, a court of chancery has no jurisdiction, but will hold all that has been properly done there as conclusive. If anyone is injured by any order or decree of that court, the remedy is by appeal to the supreme court of probate. If the proceedings are void for fraud, and the party complaining of them may treat them as a nullity, that would not give the court of chancery original jurisdiction. If such proceedings are merely void the proper course is to cite the administrator to account in the probate court. Jennison V. Hapgood, 7 Pick. 1, 19 Am. Dec. 258. The rule laid down in this case would seem to be identical with that pronounced by the majority of After an administrator, in obedience to a decree of the orphan's court, which decree was itself legal and in accordance with the facts established in evidence before the court at the time it was made, and which he was bound to obey, has paid over the entire balance in his hands to three distributees as directed by the decree, an order of the orphan's court setting aside the decree of distribution is clearly illegal. Exton v. Zule, 14 N. J. Eq. 501. Where a statute only provides for notice of the court in RE KILLAN'S ESTATE. App. Div. 256, 54 N. Y. Supp. 800; Coatsworth v. Lehigh Valley R. Co. 156 N. Y. 457, 51 N. E. 301; Sage v. Culver, 147 N. Y. 241, 41 N. E. 513. The fact that the appellant's relationship to the deceased was disputed by the answer was no reason for dismissing the proceeding and depriving the appellant of an opportunity to have the matter determined upon its merits. N. Y. Code Civ. Proc. § 2514, subd. 11; Dority v. Dority, 40 App. Div. 236, 57 N. Y. Supp. 1073; Re Wagner, 119 N. Y. 28, 23 N. E. 200; Re Callahan, 66 Hun, 121, 20 N. Y. Supp. 824; Re Schmidt, 4 Dem. 275; Re Kipp, 17 Misc. 491, 41 N. Y. Supp. 259; Re Rogers, 2 Connoly, 639, 16 N. Y. Supp. 197; Re Wood, 15 N. Y. S. R. 722. only remedy in this case a motion addressed to the discretion of the surrogate's court is to deny him due process of law People ex rel. Witherbee v. Essex County, 70 N. Y. 228; Ward v. Boyce, 152 N. Y. 191, 36 L. R. A. 549, 46 N. E. 180; 2 Kent, Com. 13; Happy v. Mosher, 48 N. Y. 313; Jenkins v. Young, 35 Hun, 569; People v. Dunn, 157 N. Y. 528, 43 L. R. A. 247, 52 N. E. 572; People v. Sickles, 156 N. Y. 541, 51 N. E. 288. The decree of February 7, 1900, was not even competent evidence against the appellant, and could not be if offered in evidence in the usual way when the administrator should have the case. 1 Greenl. Ev. 15th ed. §§ 522, 523; Re Baldwin, 87 Hun, 372, 34 N. Y. Supp. 435; To require the appellant to adopt as his McCunn's Estate, 15 N. Y. S. R. 712. But in Pierce v. Prescott, 128 Mass. 140, it was held that the power of the probate court in Massachusetts upon proper application and apon due notice to all interested, to correct its own errors and mistakes in favor of parties, who, without fault, are injured thereby, is undoubted; but it can only be exercised upon a direct petition for a review of the decree complained of, and upon notice to all the parties acquiring rights under that decree. And this is just what was claimed in the dissenting opinion in RE KILLAN'S ESTATE. the same was audited by one of the judges of the orphan's court, and on the same day confirmed nisi and an adjudication made, the amount in the hands of the accountant being awarded to the child of the intestate as sole distributee. This decree was made on the 3d of the month, an exception to the same was made on the 10th of the month, which was withdrawn on the 24th; thereafter on the 27th of the month a person claiming to be the husband of the intestate filed exceptions, and afterwards a petition setting forth his marriage to the intestate, and that he had no notice of the filing of the account or the auditing thereof, and asked to be heard upon the proceedings to audit and distribute, and for a recommittal and rehearing. Thereafter the distributee to whom the whole estate had been awarded filed a petition setting forth the decree, and alleging that she was advised that after the 24th of said month, by rule of court, the decree nisi became absolute, that she had received a portion of the estate that had been awarded to her, and prayed that the balance might be paid to her; and on the same day the court ordered the administrator to pay over said balance before a certain date, which he did. Thereafter, on the petition of the husband, the court made a supplemental adjudication allowing him his share as husband under the intestate laws. This decision was reversed by the supreme court, and the matter referred to the court below to determine if the same was actually paid over to the distributee before notice of the application for a review, which did not appear. The administrator of a decedent who had been appointed upon the application of a woman claiming to be his widow distributed the es tate to such alleged widow and her three minor children. Thereafter a person presented a petition to the probate court alleging that the decedent had been married to the mother of the petitioner some sixteen years before within the state that the administrator knew of such marriage and of the birth of the petitioner: and that the latter was a minor at the time of the proceedings which resulted in the distribution of the estate, and had no knowledge of them until within the year last past, or that his father died intestate leaving an estate to be administered; and asked the court to vacate its order thus fraudulently obtained so that he might receive the estate of his father, which rightly belonged to him. It was suggested. in answer to this, that the petitioner might have a remedy on the administrator's bond for his maladministration of his estate. The court said that it had grave doubts wheth er he could maintain an action upon the bond to recover his share of the estate until he obtained an order of the court having jurisdiction directing some part of it to be paid to him. That it was not certain that the order of the court directing the estate to be paid to other parties than himself would not defeat his action, or that he would be permitted, in an action on the bond, to show that such order was void, and that the estate should have been distributed to him, and reversed an order of the husband should be dismissed, the adjudisustaining a demurrer to the petition. Re Leavens, 65 Wis. 440, 27 N. W. 324. This would seem to be in line with the reasoning of the dissenting opinion in RE KILLAN'S ES TATE. In Stewart's Appeal, 86 Pa. 149, it appeared that the executor had filed his account, and Thereafter in the court below the matter was referred to a master, who found that neither the administrator nor his counsel had notice of the filing of the exceptions on the 27th of the month until after the entire balance had been paid over to the distributee in accordance with the original decree of the court, and that, such being the case, the ruling of the court below adjudged that the exceptions cation in his favor be set aside, and the original decree made absolute and confirmed. And this decree was affirmed on appeal. Charlton's Appeal, 88 Pa. 476. Where the executor and distributee are the same person, and an admitted creditor of the estate, who was guilty of no negligence, was |