George H. Sisco, Appellant, v. Ellen T. Martin, Respondent

George H. Sisco, Appellant, v. Ellen T. Martin, Respondent. iSpecific performance—the absence of proof of service, by publication, on next of kin, ; | of the citation to attend the proof of a will—when it is not, alone, of itself, suf'dent ground for the rejection of a title. December 8, 1897, an order was entered in a proceeding for the probate of a will, directing the service of the citation, by publication or personally without the State', upon two of the heirs at law and next of kin of the testator. January 31, 1898, the will was admitted to probate. June 13, 1898, a person, who had ■contracted to purchase real property'passing under the will, rejected the title on the ground that there was no proof of service upon such heirs at law and next of kin. June 16, 1898, proofs of such service were filed in the surrogate’s office, pursuant to an order of the surrogate, nunc pro tune as of January 31, 1898. These proofs were in existence duly executed and ready for filing June 13, 1898. In an action brought by the contract vendee to recover the deposit paid by him and the expense of examining the .title, Held, that he could not recover; That the surrogate had jurisdiction.of the probate proceeding and that the decree admitting the will to probate was conclusive uptil revoked or reversed; That the counsel who examined the title was not justified in rejecting it upon discovering the absence of the proofs of service, but was bound to exercise the ■ reasonable care and diligence of a good and faithful expert in that business to ascertain the vendor’s true title. Appeal by the plaintiff, George H. Sisco, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of May,. 1900, upon the decision of the court rendered after a trial at the Kings County Special Term, a jury having been waived. Arthur JSurst, for the appellant. Charles Melville Weeks, for the respondent. [MAJORITY — Jjenks, J.:] Jjenks, J.: This is an appeal from a judgment dismissing the complaint at the trial of an acti@n to recover a deposit paid upon a contract for the sale of lands and the expenses of examination of title. The plaintiff rejected the title on June 13, 1898, upon the ground that, though it was derived through the will of Gould, admitted to probate by the surrogate on January 31, 1898, there was no proof of •service of citation upon Homer and Culmenique, next of kin and .heirs at law, nor appearance by them. It appears that an order was made by the surrogate on December 8, 1897, directing service of :said citation upon Homer and Culmenique by publication or personally without the State, and that proofs of service by publication were in existence on June 13, 1898, duly executed and ready for filing, and that said proofs were filed in the office of the surrogate on June 16, 1898, together with an order of the surrogate that they •be filed nunc pro tune as of January 31, 1898. I am of opinion that Mr. Justice Marean was right and that the 'judgment should be affirmed. In Kelly v. West (80 N. Y. 139) the objection that the letters of administration were void because they were issued without citing the widow and without her renunciation was overruled for the reason that the surrogate had jurisdiction, and hence the statute made the letters of administration conclusive evidence of the authority of the persons to whom they were granted .until revoked or set aside. This authority was cited and approved in O'Connor v. Huggins (113 N. Y. 511, 517). In Wetmore v. Parker (52 N. Y. 450) there was objection that the surrogate had no jurisdiction to admit the will to probate because the service of the citation and proof thereof was made by one of the executors, but the court held that the probate could not be attacked collaterally for such an irregularity. It is conceded that service had been duly directed by publication or by personal service outside of the State, that the persons in question had been served and that the proof ■thereof was in existence on June 13, 1898, duly executed and ready for filing. In O'Connor v. Huggins (supra) it is held that the surrogate was “ not confined to any form of procedure or to any mode of proof in acting upon an application for letters.” 1Von constat that such proof had been submitted to the learned surrogate previous to his decree for probate. In O’Connor v. Huggins (supra) it is held that, although Surrogates’ Courts are established as of special or limited jurisdiction, yet they possess a general and exclusive jurisdiction to order administration, and where jurisdiction to act exists, their orders or decrees are conclusive until revoked or reversed.. (Matter of Hood, 90 N. Y. 512.) It will be presumed upon collateral attack that the court acted correctly and with due authority and that its judgment is “ as valid as though every fact necessary to jurisdiction affirmatively appeared.”' (Gridley v. College of St. Francis Xavier, 137 N. Y. 327, 331.) It is neither alleged nor proved at the trial that the decree did not-contain the. recital of due service of the citation, and no proof was-offered “to show that the court did'.not, in fact, acquire jurisdiction.” (Gridley v. College of St. Francis Xavier, supra.) Such recitals aré made presumptive, and, in the absence of fraud or collusion, conclusive evidence. (Code Civ. Proc. § 2473.) It appears that the examining counsel found in the course of the examination of the title that there was absence from the files of' proof of. service upon these heirs. I am inclined to think that under the authorities he was not justified to rest merely upon this-discovery and then to allege that this defect was sufficient ground, for a rejection of the title, but was bound to “ exercise the reasonable care and diligence of a good and faithful expert in that business, to ascertain the defendant’s true title.” (Moot v. BusinessMen’s Investment Assn., 157 N. Y. 201, 208; Grace v. Bowden, 10 App. Div. 541.) The judgment must be affirmed, with costs. All concurred. Judgment affirmed, with costs.