Mead v. Miller , 3 Dem. Sur. 577 ( 1884 )

The Surrogate.

The chief question for consideration is, whether the service of the citation upon Mrs. Mead was so made as to render the decree binding upon her. Section 2520 of the Code provides for the service of the citation by leaving a copy at the residence of the party to be cited, with a person of suitable age and discretion, if he be absent, under such circumstances that the Surrogate has good reason to believe • that the copy came to his knowledge, in time for him to attend at the return day. In this case, it appears, by the proof of service, that, in the absence of Mrs. Mead, a copy was left at her residence, with a person entrusted by her with its charge, of the age of about sixty years, on August 5th, 1882, which citation was returnable on September 22d, following; there being about seven weeks between the date of service and the return day. It is said Mrs. Mead was, at the time, in England. Suppose the petition had shown that she was then domiciled in that country; then, as prescribed by statute, service would have been made upon her by publication of the citation for six weeks and mailing to her a copy. Under these circumstances, there was good reason to believe that the copy came to her knowledge in time for her to attend personally, or by counsel, on the return day. But the decree complained of was not actually entered until two months from the return day had elapsed. Thus, there was ample time afforded for the protection of her interests-The facts disclosed by the affidavits presented on this motion confirm and justify the belief - entertained by .the court on the return day, that the copy came to her' knowledge in due time. The affidavit of Mr. Baldwin states that it was well known to both of the executors of Mrs. Morell that he, Mr. Baldwin, was the attorney for Mrs. Mead and had entire control of her estate during her absence, and that he, representing Mrs. Mead, and the' executors had many conferences relating to the estate of Mrs. Morell. It follows that he must have been in communication with Mr. Beck, who had charge of Mrs. Mead’s property at Scarborough, near Beechwood, and with whom the copy of the citation was left. It further appears, from the affidavits, that Mr. Miller, the surviving executor, and Mr. Baldwin, the attorney for Mrs. Mead, pending the accounting proceeding, had frequent conferences in regard thereto, and frequently exchanged written communications on the subject of the adjournment of the same, from time to time.

The decree is, therefore, binding upon Mrs. Mead, unless some error of fact, fraud or mistake were committed, entitling her to relief. But none such are alleged, nor is the motion based upon any such ground. The allegation is that the decree contained a direction to pay a legacy to a religious society which was not then incorporated, and which was not, therefore, competent to take it. If that be true, it was an error of law, which this court has no power to rehear, or review. As Judge Van" Vorst well says, in his opinion dismissing the complaint in the action to obtain a construction of the will, “ the decree still stands unreversed. It cannot be questioned here, as the Surrogate has jurisdiction. If dissatisfied with the decree, the complaining parties should have appealed.”

In the similar case of Singer v. Hawley (ante, 571), I have just held that I cannot open a decree on account of the commission of alleged errors of law.

Motion denied.