In re Page

• Decision Date: 29 November 1887
• Parties: In re Estate of PAGE, Deceased.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 266

14 N.E. 193

In re Estate of PAGE, Deceased.¹

Court of Appeals of New York.

November 29, 1887.

Appeal by the widow and next of kin of John B. Page, from an order of the general term, First department, denying a motion to vacate a decree and set aside letters of administration issued to the public administrator in the city of New York.

The New York consolidation act, § 219, subd. 1, provides: ‘Whenever any person shall die intestate, either within this state or out of it, leaving any goods, chattels, or effects within the city or county of New York,’ the public administrator shall have, etc. Section 220 of the same act provides: ‘Sec. 220. But the last section shall not confer on the public administrator any authority in respect to the estate of any person not a citizen of this state dying outside of this state or on board of any foreign vessel within the harbor of New York, unless (1) such person shall have landed within the city and county of New York, or at the quarantine near the said city; or (2) unless the effects of such person, or some part of them, shall have been so landed; and when any effects of such person shall have been so landed, the authority of the public administrator shall extend to such effects only.’

The other facts sufficiently appear in the opinion.

Alfred R. Page, for appellant.

Lewis Sanders, for respondent.

PECKHAM, J.

The citation to the widow and next of kin of the deceased was to inform them of an intended application by the public administrator of New York city to the surrogate of the county for letters of administration upon the estate of the intestate named in the citation, and it was stated that such application would be made to the surrogate at the court-house, and at a certain day and hour. This citation was issued pursuant to statute, and was necessary under the circumstances, to give jurisdiction to the surrogate to make any order in the proceeding. When upon the day and hour named in the citation the counsel for the widow and next of kin of the deceased appeared before the surrogate, ready, as is stated, to oppose the application, there was no appearance on the part of the public administrator. This is not disputed. The counsel for the widow says that no application was made to the surrogate for the granting of any letters of administration upon this estate at that time. He further says that he remained in court until after the second call of the calendar, and was then informed by the surrogate that there was no such application upon the calendar for that day. He then left the court-house, and in truth no application was made to the surrogate on that day. Subsequently, and without notice to the counsel for the widow, and in his absence, application was made to the surrogate for the issuing of letters to the public administrator, and the same was granted. It is thought that where no one appeared upon the return day of the citation, on behalf of the public administrator, and when the counsel for the widow did appear and was then ready to oppose the granting of such application, and no order was made in the proceeding at that time, the surrogate lost jurisdiction to proceed further without either the due service of another citation or the voluntary appearance of the widow and next of kin. Their counsel had done all that he could be expected to do when he appeared for them as cited, and was ready to oppose the application. If no one appeared upon the other side and no order was made in the case, the proceeding went down, and nothing further could be done without due notice. We cannot agree that in such event the matter stood over ready to be heard whenever in the ordinary course of the business of the court it should be brought to the attention of the surrogate. The surrogate might have made an order adjourning the case to some specified time, and thus retained jurisdiction, but he did nothing of the kind, and the proceeding was simply out of court. This necessitates the reversal of the order of the general term and of the surrogate, and the entry of an order in the surrogate's court annulling and setting aside and revoking the letters of administration heretofore granted to the public administrator of New York.

The learned counsel for the widow contends, however, in his argument and in his brief filed here, that the public administrator had no right to letters of administration in this...