Anson v. Stein

Stockton, J.

— The grant of letters of administration is, in general, prima facie evidence of the intestate’s death; for only on evidence of that fact, ought they to have been granted. 1 Greenl. Ev., sec. 550; 2 Ib., sec. 355. So, where the grant of administration turns on the question of which of the parties was next of kin, the sentence, or decree, of the surrogate’s court on that question, is conclusive every where, in a suit between the parties for distribution. But no collateral fact, to be collected merely by inference from the decree or grant of administration, and which was not the point directly tried, is proved the exemplification of *152 the record. Greenl. Ev., sec. 559. Where a party claims as heir, he must first establish, affirmatively, his relationship with the deceased; and secondly, negatively, that no other descendant exists to impede the descent to the plaintiff.

By the record given in evidence, it is not shown that there was any question for adjudication before the surrogate, whether Daniel Smith was the next of kin heir of Alexis Smith. Certain persons, representing themselves to be the father and brother of the deceased, file with the surro. gate a paper, relinquishing their right to administer upon his estate; another person representing himself to'be a creditor, files a paper representing to the surrogate, that Alexis Smith died in the city of New York, on the loth of July, 1849, intestate, without widow or children: and that Daniel Smithj his father, surviymg him, and his only next of kin, has renounced his right to administer upon his estate, and asking that he, the said creditor, may be appointed administrator. The surrogate, thereupon, granted letters of administration to the applicant. There was no contest as to the right to administer; there was no dispute as to -the facts. The grant of letters of administration to Jesse C. Smith, was not a decision that Daniel Smith was the father of Alexis Smith, and his sole heir. That was not the point directly tried, andif to be collected at all, it can only be collected by inference from th e proceedings in the surrogate’s court. We are, therefore, of the opinion, that the district court erred in admitting the transcript from the surrogate’s court, to prove the relationship and heirship of plaintiff to Alexis Smith, and in the instruction given to the jury, that the same was sufficient for that purpose.

The question as to the validity of a deed for taxes, made by the treasurer under a judgment of the district court, rendered in Jryre, 1849, for the unpaid and delinquent taxes of 1847, has been decided by this court, in the recent cause, of Williams v. Gleason 5 Iowa, 284 , and Bleidorn v. Abel et al., ante, 5. The ruling made in these cases, we have as yet seen no reason to change.

Eor the error in the ruling of the court upon the suffi *153 ciency of the evidence afforded by the surrogate’s transcript, to show the relationship and heirship of the plaintiff to Alexis Smith, the judgment will be reversed. We give no opinion as to the correctness of the ruling of the district court, upon the tax deed of the collector of Muscatine. '

Judgment reversed.