Perley v. Sands , 3 Edw. Ch. 325 ( 1839 )

The Vice-Chancellor :

The object of the bill is not to call the money out of the defendant’s hands or to have him account as administrator, but to recall the letters of administration granted to the defendant by the surrogate and to compel him to give them up to be cancelled, so that the complainant, as widow of the intestate or another person in whose favor she may renounce, may be appointed; and, in the meantime, that the defendant be enjoined from any further action as administrator in distributing or parting with the money in his hands. The bill shows it to have been a case in which the surrogate here had not authority or jurisdiction to grant letters of administration to the defendant and that the letters speak untruly in representing the intestate to have been an inhabitant of this county or to have left any property here or that property or effects had come within the county of New-York. It therefore alleges that the letters of administration were granted by mistake and that the same are void ; but that the complainant is advised the surrogate has not jurisdiction to annul the same or to declare them void.

It w'ould seem, by the revised statutes, that surrogates had no power to recall or revoke lettters of administration once granted by them ; and it was there declared that no surrogate should, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever not expressly given by some statute of this state : 2 R. S. 221. But this prohibition has been repealed by the new statute of May 16, 1837, $ 71 ; and in this new statute, at § 34, surrogates have power to revoke letters whenever it shall appear to them that they have been granted on or by reason of false representations made by the persons to whom the same were granted. This power is not limited to cases in which letters may thus be obtained since the passage of this law, but it is general and applies to all cases of that character which may have previously 0CCUTie¿ requiring correction. And this court is bound to presume that if the surrogate is applied to, in due form, to exercise this power in regard to the letters of administration in question that he will exercise it and, if the facts are made to appear, that he will revoke them. If he should decide erroneously, there is a remedy by appeal.

But it is said, these letters may have been granted, not through or by reason of a “ false representation,” but by a mis- • take or perversion of facts and such as may not be within the power of the surrogate to correct. If granted under a mistake of facts, such mistake must, I consider, have originated in a misrepresentation, at least, in the application for the grant of letters ; and any misrepresentation, it seems to me, would be a false representation within the meaning of the statute, giving the surrogate the right to inquire and to revoke. If the grant be void, the surrogate, in this way and on this ground, ascertains it and there is no necessity for invoking the powers of the court. If not void, this court clearly has no right to interfere with the administrator’s title.

A bill, for purposes like the present, seems to me to be unnecessary ; and there ought to be no injunction upon it. Let it be dissolved, with costs.