In re Law

Hatch, J.:

It cannot be legally questioned but that the facts averred in the petition, if undisputed, would entitle the petitioner to a probate of the will by the surrogate of the county of New York. The petitioner makes compliance with all the statutory requirements and avers facts which, if true, establish jurisdiction in the court of this proceeding. We are called upon, therefore, to consider what effect, if any," is to be given to the determination and judgment admitting this will to probate by the Probate Court of Connecticut. It seems .to have been concluded by the learned surrogate that such. decree was conclusive of every question which was sought to be presented, and bound the petitioner in accordance with its terms. The ques *457 tion before us is not new and has been the subject of repeated ' adjudications by the Federal courts and also by the courts of this State and elsewhere. (Thormann v. Frame, 176 U. S. 350 ; Risley v. Phoenix Bank, 83 N. Y. 318 ; Schultz v. Schultz, 60 Am. Dec. 335 , n. p. 353, et seq. Bowen v. Johnson, 73 id. 49, n. p. 53, et seq.)

As the decree is limited in its binding effect to the thing which it operates upon, it remains open to be controverted as to all the grounds and incidental facts upon which it professes to be founded. (Durant v. Abendroth, 97 N. Y. 132 .)

It is a general rule of law that the judgment of a court of a foreign State has no binding force or effect in this State unless the court had jurisdiction of the subject-matter and of the persons of the parties. Want of jurisdiction is a matter which may always be interposed against a judgment or decree when it is sought to be enforced, or when any benefit is claimed under, it. The want of jurisdiction, either of subject-matter or person, .renders the judgment a nullity, and it may be attacked in any form, either directly or collaterally. (Kerr v. Kerr, 41 N. Y. 272 ; Pennoyer v. Neff, 95 U. S. 714 , and cases already cited.)

Judgments of superior courts exercising general jurisdiction are attended by a presumption that they have been regularly and legally rendered, and when the record does not disclose that the court acquired jurisdiction it will be presumed until the contrary appears. (Chemung Canal Bank v. Judson, 8 N. Y. 254 ; Pacific Pneumatic Gas Co. v. Wheelock, 80 id. 278 ; Potter v. Merchants' Bank, 28 id. 641; Galpin v. Page, 18 Wall. 350 .) But where such courts exercise a special statutory power not according to the course of the common law, no such presumption obtains, and they may be attacked collaterally. (Steph. Dig. Ev. [Chase’s ed.] 97, 98, note, and cases cited.) As to the judgments, however, of inferior courts, or those courts which exercise a limited jurisdiction, no such, rule obtains. When such judgments are relied upon, it becomes incumbent upon a person asserting a right thereunder to prove that the law. authorized the rendition of such a judgment, and that the steps taken to acquire j urisdiction both of the person and the subject-matter were duly had and taken according to the course of the law under which the *458 judgment was .assumed to be rendered, and the facts necessary to ■jurisdiction must be shown. The cases which we have already cited sustain this view. '

A Surrogate’s Court or a Court of Probate is an inferior court of limited jurisdiction, and is consequently subject to the rule- which we have announced. (Matter of Hawley, 104 N. Y. 250 .) ' There was no evidence received by the surrogate in the present proceeding, and under the rule applicable to this decree, it would seem to follow that in fact it established nothing binding upon this petitioner, and upon the state of the proof the contestant could derive no benefit therefrom as against him. It also appeared upon the •face of the record that the citation issued by the Connecticut court was served upon the petitioner by publication; that no personal service was ever made upon him, and it does not appear that any person, guardian or otherwise, was appointed by the court to represent him, or that he ever appeared in the proceeding, in person or otherwise. This, under the rules of law established in this jurisdiction, would not confer authority upon the court to make a decree which would be in anywise binding upon him. It seems plain, therefore, that' nothing appeared from the decree alone which authorized the surrogate to give it. any effect whatever. ITndohbt- - edly, if the Probate Court acquired jurisdiction, such court acquired the right to establish the will and administer upon the personal estate, of the testator, and this effect will be given to the decree. (Bolton v. Schriever, 135 N. Y. 65 .) Such force will be given to it as is given to similar decrees of corresponding courts in our own jurisdiction; (Bowen v. Johnson, 73 Am. Dec. 49 .) As it establishes the will and becomes operative upon the personal property of the estate, the decree will authorize the issuance of ancillary letters in the foreign jurisdiction, and such letters- have the same force as though originally issued from the jurisdiction in which they operate. (Code Civ. Proc. §§ 2694-2704.) Such letters, however, have no effect upon title to real property. (Code Civ. Proc. §§ 2694-2697; Matter of Merriam, 136 N. Y. 58 ; Corley v. McElmeel, 149 id. 228.) And if the will be not executed in- accordance with the laws of this State, it is not operative upon real estate, although it is operative as to personal property. (Matter of Gaines, 84 Hun, 520 ; affd., 154 N. Y. 747 .)

*459 What the status of this decree is of how far it may be, in fact, operative, or what it can operate upon, is not presently of consequence. Mo such question is now before us. All that we have to consider or decide, and all that we do decide, is that upon present proof this decree establishes nothing which can operate as an estoppel or as a binding adjudication upon the rights of the petitioner. As to him, if nothing further appears, he becomes entitled to have the prayer of his petition granted. The contestants may overthrow this view by proof in support of the decree showing that the court acquired jurisdiction both of the subject-matter and the person of this petitioner, and that the proceedings were regular; and, if so, then the will became established and the decree operative, so far, at least, as the personal property of the testator is concerned. In which event, the issuance of ancillary letters Was proper, and the estate here will be administered thereunder.

If these views are correct, it follows that the decree should be reversed and the proceeding remitted to the Surrogate’s Court for disposition, with costs and disbursements to the appellant to abide the final event to be paid out of the estate.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Decree reversed and proceedings remitted to surrogate for disposition, with costs and disbursements to appellant to abide final event, to be paid out of the estate.