In re Lyons' Will , 73 Hun 433 ( 1893 )

HARDIN, P. J.

Subdivision 6 of section 2481 of the Code of Civil Procedure, which relates to the power of the surrogate to open, vacate, modify, or set aside a decree of his court, provides that “upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power as the surrogate; and his determination must be reviewed, as if an original application was made to that term.” In the course of the opinion delivered in Re Tilden, 67 How. Pr. 449, it was said: “Under this authority, the entire controversy presented by the petition and the answer to it is to be considered upon the appeal in the same-manner in which the surrogate himself had the authority to consider it.” Although that case was reversed, (98 N. Y. 442,) the-doctrine found in the quotation just made was not disturbed. In Bailey v. Stewart, 2 Redf. Sur. 213, it was held that “the surrogate has power to open, vacate, or modify his probate of a will, whether of real or personal estate, or both,” and an extensive examination of the .authorities bearing upon that question was made by Surrogate Calvin. The same doctrine was referred to in Re Wood’s Estate, (Sup.) 8 N. Y. Supp. 884, in the following language: “Section 2481, subd. 6, gives the surrogate the same power over the judgments and decrees of his court as is possessed by courts of record, and the power of such courts to vacate unauthorized judgments, upon proper notice to the parties to be affected, has never been questioned.” And in Re Hawley, 100 N. Y. 211, 3 N. E. 68, it seems to be conceded in the opinion “that every court of record has an inherent power over its own records to modify, amend, and vacate them, independent of the special authority conferred by statute.” It appeared by the petition presented that the residence of Louisa Harlow was 59 Rush street, Chicago, Ill. The order for the deposit of a copy of the citation was to the effect that it should be directed to her as “Louisa Harlow, 57 Rush street, Chicago, Illinois.” The service of the citation was defective. The surrogate did not acquire jurisdiction over the person of Louisa Harlow. She never had her day in court upon the subject-matter involved in the application for the probate of her relative’s will. Fetes v. Volmer, (Sup.) 8 N. Y. Supp. 294. It also appears that the order for publication was: defective in misdescribing the journals in which the publication, was to and actually did take place. Appellant calls our attention to Durant v. Abendroth, 97 N. Y. 133. We think it does not aid his position. In the course of the opinion in that case, Rapallo, J., said “that a judgment operates in personam only upon the parties appearing before the court, or brought before it by proper process.” We think the respondent was entitled to service of process in accordance with the requirements of law before her rights as heir at law of the deceased could be taken away by any proceeding had in the surrogate’s court. The order appealed from cautiously observes the rights of all parties under the decree, and gives the respondent, Louisa Harlow, the right to be heard upon the questions relating to the probate of the will of the deceased. Order affirmed with costs to the respondent, payable .out of the estate. All concur.