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THE 
 
 l^ATUEE, EXTEISTT ANT> IIISTOEY 
 
 ^ 1 J OF THE JURISDICTION OF 
 
 OF THE STATE OE NEW-YOHK. 
 
 Diu'..^-.x.ED BY 
 
 OPINION 
 
 HoK. CHARLES P. DALY, 
 
 First Judge op the Court op Common Pleas for the City and County op 
 New-York, acting as Surrogate 
 
 IN THE MATTER OF THE ESTATE OF 
 
 JOSEFH W. BRICK, deceased. 
 
 Printed by Order of the Board of Supervisors. 
 
 JOH^ A. GRAY, PRINTER, STEREOTYPER, AND BINDER, 
 
 FIEE-PROOF BUILDINGS, 
 CORNER OF FRANKFORT AND JACOB STREETS. 
 
 1863. 
 
Digitized by the Internet Archive 
 in 2013 
 
 http://archive.org/details/natureextenthistOOdaly 
 
OF THE CITY AND COUXTY OF NEW-YORK. 
 KTovember 2G, 1862. 
 Hpx. CHARLES P. DALY, LL.D., 
 
 Acting as Surrogate* 
 I?^ THE MATTER OE THE ESTATE OE 
 
 JOSEPH ^Y. BRICK, deceased. 
 — • • • — - 
 
 COUNSEL. 
 
 Hon. MURRAY HOFFMxVX, LL.D., 
 
 /(?/' the Petitioner. 
 
 Hox. LEWIS B. WOODRUFF, LL.D., 
 RICHARD O. GORMAX, Esq., 
 
 /or the Exccu.for. 
 
 Hox. ALEXANDER W. BRADFORD, LL.D., 
 
 for the other Heirs, 
 
 • • • 
 
 PROCTORS. 
 JOHN A. STOUTENBERGH, Esq., for the Petitioner, 
 ^ CUMMINGS, ALEXANDER & GREEN, Esqs., for the Executor. 
 GABRIEL VAN COTT, Guardian ad litem for Infant Heirs. 
 
 * Surrogate West having died during his terra of office. Judge Daly diseliarged 
 the duties of Surrogate from Julv S to December 1, 1SG2. 
 
SYNOPSIS. 
 
 Nature and extent of the jurisdiction of the Surrogates' Courts of the State 
 of New- York. 
 
 Investigation of the history of this jurisdiction from the year 1646 to the 
 present time : under the Dutch, during the Colonial rule of the Eng- 
 lish, and under the State Government. 
 
 The nature of the Ecclesiastical jurisdiction of England, and the extent to- 
 which it prevailed in the Colony of New- York, with the history of the 
 Prerogative Court, the Court of Probates, and other tribunals exer- 
 cising co-ordinate jurisdiction with the Surrogates' Courts. 
 
 Enumeration of all the powers possessed by the Surrogates at the time of 
 the passage of the Revised Statutes. 
 
 The distinction which exists between the powers of the Surrogate'o Court 
 and the general power of a Court of Record, or of a Court of Equity 
 to review their proceedings or to order a rehearing. 
 
 The cases in which a Surrogate can, and when he cannot, open a decree. 
 
 Accounting in the Surrogate's Court — its object, effect, and history. 
 
 The mode in which infants, interested as parties, must be cited. 
 
 Power of the Surrogate to appoint guardians ad litem for them. 
 
 How far the act of the guardians ad, litem is binding upon the infant. 
 
 When the decree of the Surrogate is conclusive upon them. 
 
 When they are concluded by a decree upon a final accounting. 
 
 The marriage of a minor, if a female, determines and puts an end to her 
 guardianship. . 
 
OPINION. 
 
 This is an application on behalf of an infant devisee of the 
 testator, to open a decree made by the late Surrogate upon a 
 final accounting of the acting executor, upon the ground that 
 many unjust and illegal charges were allowed, to her detriment 
 and injury. 
 
 The petitioner, who has not yet attained her majority, is a 
 married woman. She was a daughter of the testator, and her 
 mother was appointed by the will her testamentary guardian. 
 An objection is taken that this application must be made by 
 her guardian, Ind not by herself, while on her part it is insisted 
 that her marriage determined and put an end to the testa- 
 mentary guardianship of her mother. 
 
 In several parts of England the marriage of a female by local 
 usage terminated her guardianship, {Bohun's Customs of Lon- 
 don, 315; ILev, 162; 1 Sid. 250; 1 Bcnj, 116,) and a provi- 
 sion to the like effect was incorporated in one of our Colonial 
 Statutes, {Act of 1692, Laws of Neiu-YorJc, Smith and Living- 
 ston's edition, p. 15,) but at first the Courts were unwilling to 
 recognize it as a general rule. 
 
 ^It is said in Eolle's Abridgment, (1 i?oZ/e, 288,) that if 
 Baron and Feme suffer a common recovery and appear by at- 
 torney, the feme being under age, it is error, for she should 
 appear by guardian ; but the point was doubted by two of the 
 Judges. 
 
6 
 
 In Freeman v. Biddington, {Ve7it. 185; 2 Lev. 88; 2 Ifehle, 
 878,) wbich was an action of assumpsit against baron and feme 
 on a contract for wares by the feme dum sola, in which they 
 both appeared by attorney, it was held after judgment, by two 
 of the Judges, that it was error, — that the wife should have 
 appeared by guardian. 
 
 But in a later case (Mendes v. Mendes, 1 Ves. Sen. 90,) it 
 was held by a very great authority, Lord Hardwicke, that 
 though the marriage of a male ward did not determine the 
 guardianship, the marriage of a female ward did, and he 
 declared that it was so adjudged in the case of Lord Shaftes- 
 bury, and again in Koach v. Gar van, (1 Ves. Sen. 159*,) he 
 declared that the Court would not appoint a guardian after 
 marriage. 
 
 These two latter cases are referred to by Macpherson in 
 his work on infants, p. 90, as authority for the rule that testa- 
 mentary guardianship is not determined by the marriage of a 
 male ward, but that the guardianship of females is determined 
 by their marriage. 
 
 He remarks that it is a necessary consequence of the rights 
 which a husband acquires by marriage with regard to the 
 wife's person and property ; and as the reason he assigns is a sat- 
 isfactory one, I shall treat the rule as established, and over- 
 rule the objection. 
 
 The next objection goes to the jurisdiction of the Court. It 
 is insisted that Surrogates' Courts in this State are Courts of 
 special and limited jurisdiction, and that if the parties in inter- 
 est have been duly cited, and the Surrogate has pronounced his 
 sentence or decree, he has no authority afterwards to revoke, 
 alter or amend it, except in certain specified cases, and that 
 this is not one of them. On the part of the petitioners, on the 
 other hand, it is claimed that the repeal of the provision in the 
 Revised Statutes, by which the Surrogates' Courts were limited 
 to the powers therein expressly enumerated, has restored these 
 
7 
 
 Courts to every authority which they possessed prior to the 
 revision of 1829. That they have now the same general 
 powers which the Ecclesiastical or Spiritual Courts of 
 England exercised in testamentary matters, and in cases of in- 
 testacy, and can, after decree or sentence pronounced, give the 
 same species of equitable relief, if mistakes or errors have been 
 committed, or injustice has been done, which may be had in a 
 Court of Equity after a decree has been rendered. 
 
 In the Eevised Statutes the powers conferred upon Surro- 
 gates' Courts were specifically defined, and it w^as declared that 
 those which were therein enumerated should be exercised in 
 the cases and in the manner prescribed by the Statutes of the 
 State, and in no oilier^ and that no Surrogate should, under pre- 
 text of incidental power or constructive authority, exercise amj 
 jurisdiction whatever not expressly given by some Statute of 
 the State. (2 Eev. Stat. 220, § 1.) 
 
 In recommending this very stringent provision for adoption, 
 the Eevisors in their notes said that the jurisdiction of Surro- 
 gates w^as very'undefined, and might give rise to most serious 
 questions ; that the foundation of the authority exercised by 
 the Colonial Governors, and its extent, were questions which 
 had already much agitated the Courts ; that the idea was enter- 
 tained by some that these Courts possessed all the powers and 
 jurisdiction of the Ecclesiastical Courts of England, and that 
 their own researches had satisfied them that a clear and dis- 
 tinct limitation of the powers of these tribunals was very neces- 
 sary, and that they had accordingly attempted it by an enu- 
 meration of the powers conferred. 
 
 This restriction proved to be a very unwise one. The ap- 
 prehensions w^hich led to it were more imaginary than real. 
 The effect of it was to create questions of doubt and difii- 
 culty, and to embarrass the Surrogates greatly in the exercise- 
 of their ordinary duties. It was consequently repealed in 
 1837. {Laics of 1837, p. 536, § 71.) 
 
8 
 
 The effect of this repeal came under consideration in the 
 Court of Appeals in the late case of Sipperlj v, Baucos, 24 
 New -York B. 46; and it was there held by the Judge who 
 delivered the opinion of the Court, Mr. Justice James, that the 
 effect of it was to restore to these Courts, except where they 
 were particularly restricted by Statutory enactments, the same 
 powers substantially which they possessed before the Revised 
 Statutes, together with those powers which were incidental 
 and necessary to enable them to discharge the duties imposed 
 upon them. 
 
 The question then arises what were the powers vested in 
 these Courts before the Revised Statutes ? 
 
 This is now a matter of great practical importance in this 
 Court, as questions analogous to the one now under considera- 
 tion may constantly arise hereafter. Mr. Justice James, in 
 Sipperly v. Baucos, supra, says that before the Revised Statutes 
 the powers and jurisdiction of these Courts were undefined, 
 that the law respecting them and the subjects of their cog- 
 nizance were defective, ambiguous, and irreconcilable, apd 
 the practice and decisions uncertain and contradictory. This 
 is in consonance with the opinion expressed by the Revisors ; 
 and that such an impression should prevail is very natural, 
 as the whole subject has hitherto been involved in a great 
 deal of obscurity. This impression is, however, erroneous. 
 The jurisdiction of these Courts before the Revised Statutes 
 was exactly defined, but, as the Revisors found, exceedingly 
 difficult to ascertain. Its history was very complicated, for 
 it had undergone many mutations and changes, and as there 
 were, especially during the Colonial period, other tribunals' 
 exercising co-ordinate, as well as additional powers, the 
 whole subject became so intermingled, that, without knowing 
 exactly what was conferred upon these other tribunals, it 
 was impossible to distinguish what the Surrogates did and 
 what they did not possess. The information necessary to 
 
9 
 
 explain it is now to be gathered from a long series of manu- 
 script records, from contemporary Colonial documents, some of 
 which have been published, and others not, and from early 
 Colonial statutes — with all of which I had occasion some years 
 ago to become familiar, — which will enable me to separate this 
 hitherto entangled subject, and show exactly what powers 
 were vested in the Surrogates ; but to do so it will be neces- 
 sary to trace the course of this jurisdiction from the earliest 
 period of our Colonial history to the passage of the Kevised 
 Statutes. 
 
 When the Colony of New- York, or, as it was then called, 
 New- Amsterdam, was settled by the Dutch, all judicial power 
 was vested in a Council composed of the Director-General, the 
 Yice-Director and the Scout Fiscal (1 Col. Doc. of New - York, 
 160.) Afterwards a Court was established, of which the Yice- 
 Director was the presiding Judge, having associated with him 
 members of the Council, and in which the Governor or Direc- 
 tor-General himself occasionally presided. Before this tribu- 
 nal all mattery pertaining to succession to estates, whether 
 real or personal, were disposed of according to the Dutch. 
 Roman law, the custom of Am.sterdam, and the law of Aas- 
 dom. (The Vertoogh^ or Remonstrance of ]^ew- Netherlands^ 
 translated by Dr. O'Callaghan, 89, 59; 1 Col. Doc, 160; 4 
 Documentary History of New-York, 69 ; Daly's Historical Sketcli 
 of the Judicial Trihuncds of New-York, from 1623 to 181:6, p. 8, 
 9, 6 ; 2 O'Callaghan' s History of New-Netherlands, 24 to 31 ; 
 Albany Records, 20 to 61.) 
 
 On the establishment of the Court of Burgomasters and 
 Schepens in 1653, jurisdiction of all such matters was traus- 
 ferred to it, with a right of appeal to the Governor and Council. 
 Before this Court wills were admitted to probate, letters of 
 administration granted, curators appointed to take charge of 
 the estates of widows and orphans, executors and administra- 
 tors were compelled to account, and distribution was decreed. 
 
10 
 
 As these duties, however, interfered very much with the ordi- 
 nary business of the Court, a Court of Orphan Masters was 
 established in 1665, which had the power to grant letters of 
 administration, to appoint guardians, and to regulate estates 
 in all cases where it was not specifically excluded from so 
 doing by the words of the testator's will. {Records of the Court 
 of Burgomasters and Schepens^ vol. 1 to 6. Lacliaire and Van 
 Veen's Manuscript JVotarial Registers or Protocols in Neiu- York ; 
 Common Council Records ; Bakfs Judicml Tribunals^ 17, 18 ; 
 Streets Council of Revision of the State of New- Yorh, p. 20.) 
 
 After the conquest of the province by the English in 166i, 
 the Court of Burgomasters and Schepens was changed into 
 the Mayor's Court, a name by which it was known for one 
 hundred and forty-six years afterwards, until the present 
 name was given, of the Court of Common Pleas. For some 
 years, under the English rule, it continued to exercise the 
 same functions as before, and its proceedings were conducted 
 in the English and Dutch languages. The Court of Orphan 
 Masters was discontinued, and the Mayor's Court, long after 
 its proceedings were conducted entirely in English, exercised 
 the same jurisdiction in respect to testamentary matters and 
 intestate estates of persons dying within the city, as it or the 
 Court of Orphan Masters had exercised previously, with some 
 modifications and restrictions. {Records of Mayor'' s Court; Re- 
 cords of Wills in New- Yorh Common Pleas Court^ vol. 1 and 2 ; 
 Daly's Judicial Tribunals of New- York, 25, 26.) 
 
 When the government of the province was committed to Gov- 
 ernor Nicoll, by James II., then Duke of York, a body of laws 
 was framed for its government, afterwards known as "The 
 Duke's Laws " ; and this code, with such additions as were made 
 to it by the Governor and Council, or at the annual sitting of 
 the Court of Assize, the written instructions received by the 
 Governors from the Home Government, the principles of the 
 
11 
 
 common law, together with certain usages and customs which 
 had been derived from the Dutch, — constituted the law of the 
 province, until the sitting of the first Legislative Assembly, 
 in 1683. 
 
 By the Duke's Laws, a constable and two overseers were 
 required to proceed to the house of a deceased person, forty- 
 eight days after the death, and inquire respecting his estate, 
 and whether he had left any will. They were required, fur- 
 ther, to make an inventory of his effects, appraise the value, 
 and make a return of their proceedings, under oath, to the 
 next Court of Sessions. 
 
 The province was divided into three ridings, in each of 
 which was a Court of Sessions, composed of the justices of 
 peace living within the riding, which was held twice a year. 
 The probate of wills, the granting of administration in cases 
 of intestacy, the final accounting of executors and administra- 
 tors, together with such compulsory measures as were neces- 
 sary to compel it, the removal of executors, the distribution 
 of estates, and' the appointment of guardians, took place in 
 the first instance before the Court of Sessions, except in the 
 city of New- York, where the same jurisdiction was exercised 
 by the Mayor's Court. If the estate, however, exceeded the 
 value of £100, all proceedings upon the probate of wills and 
 all records in case of administration had to be transmitted, 
 duly certified, to the ofiice of the Secretary of the Province in 
 the city of New-York, where they were required to be 
 recorded, and where letters testamentary and of administration 
 in such cases, and the final discharge of executors or adminis- 
 trators, which was called a quielas, were granted by the Gov- 
 ernor under the seal of the province. The proof and all 
 proceedings took place, in the first instance, before the Court 
 of Sessions or the Mayor's Court, and the Court gave its judg- ^ 
 ment or opinion, which was transmitted to the Governor 
 under the certificate of one of the Justices and of the Clerk, 
 
12 
 
 and the act of the Governor was simply a formal ratification 
 by the granting of letters or of discharges. In some instances 
 the Governor gave his judgment upon the construction of a 
 will, and Governor Andros granted letters without any pro- 
 ceeding in Court, but these were exceptional instances and of 
 rare occurrence. In all proceedings before them, the Court of 
 Sessions had the power of grantitig a rehearing, or, as it was 
 called, a ''review," and upon such review might in their dis- 
 cretion admit new evidence — a power, however, which was not 
 continued in the courts which succeeded in 1691 to the civil 
 jurisdiction of these tribunals. {The Duke^s Laws ; Collection 
 of the New- Yorh Historical Society^ vol. 1, pp. 815, 404, 412, 
 415; Records of Wills in New-Yorh Surrogates Office^ Lib. I, 
 pp. 1, 3, 10, 19, 21, 31, 28, 38, 41, 67, 90, 91, 105, 190, 195, 
 270, 283, 855, 876, 877, 442; Lib. II., 29 ; Lib. IIL, 191; Lib. 
 lY., 129 ; Booh of Inventories^ vol. I., 1, 5 ; Dalfs Judicial Tri- 
 hunals^ 23 to 30 ; 2 Revised Laws of 1813 ; Appendix No. Y.) 
 
 This state of things continued unfil 1686. In the letter of 
 instructions transmitted in that year to Governor Dongan, he 
 was among other things directed to see that the ecclesiastical 
 jurisdiction of the Archbishop of Canterbury should take place 
 in the province, as farr as conveniently may bee," except the 
 collating of benefices, the granting of marriage licenses, and 
 the probate of wills, which were reserved to the Governor ; 
 and in a similar letter of instructions to Sloughter in 1689, 
 the ecclesiastical jurisdiction of the Bishop of London was 
 added. (3 Col Doc. 372, 688, 820.) The ecclesiastical juris- 
 diction of the Bishop of London, so far as it related to testa- 
 mentary matters or the administration of the estates of intes- 
 tates, was limited to cases where the effects of the deceased 
 were exclusively within the Bishop's diocese, and the juris- 
 * diction was exercised by a court held in the diocese by the 
 Bishop's Commissary, or Surrogate ; but if the deceased had 
 left effects in more than one diocese, then the Archbishop of 
 
13 
 
 Canterbury had exclusive jurisdiction, and the matter was 
 heard before his delegate in the Prerogative Courts, of which 
 there were two, the prerogative offices at York and Canter- 
 bury. {Ayliffcs Parereg on Juris Canonici Aiiglicana, 192, 534, 
 London, 1726; Gzhson Codex, 465, 471, 472, 478 ; GodolpMn's 
 Orphans^ Legacy^ 106 ; 4 Inst, 835 ; Williams on Executors, 248, 
 4th Lond. Ed.) 
 
 After these instructions were received, a change took place 
 in the course of procedure ; the Courts of Sessions and the 
 Mayor's Court continued to exercise the same functions as 
 before, but the Governor or the Secretary of the province also 
 took proof of the execution of wills and of the inventory and 
 appraisement of estates; and in 1691, under the administra- 
 tion of Lieutenant-Governor Ingoldsby, a clause was inserted 
 in all letters testamentary or of administration, that the grant- 
 ing of such letters, the hearing of accounts, the reckoning of 
 administration and the granting of the final discharge, belong- 
 ed to the Governor, and not to any inferior Judge, If a will 
 was proved befofe the Secretary, he annexed a certificate that 
 "being thereunto delegated," the will had been duly proved 
 before him, and an authentication, in the name of the Gover- 
 nor, in the form that continued in use down to the Revised 
 Statutes, that the will had been " proved, approved, and 
 allowed " under the prerogative seal, was annexed, and the 
 whole was recorded in the Secretary's office — the validity of 
 the record being attested by the Secretary's signature. In this 
 way a- distinct department grew up in the Secretary's office, 
 which took the name of the Prerop^ative Office, and the records 
 connected with it the name of the Registry of the Prerogative, 
 and by 1691 the whole became distinguished by the judicial 
 appellation of the Prerogative Court. {Register of Wills in 
 New -York Surrogate's Office from 1683 to 1690 and 1691, 
 pages 182, 229.) The Legislative Assembly which was con- 
 vened in 16S3, having been abolished, was again re-instated in 
 
14 
 
 1691, and at its second session, in 1692, an act was passed 
 {Laws of ISfew-York from 1691 to 1751, vol. 1, p. 15 — Smith 
 k Livingston's ed.) by which it was declared that the probate 
 of all wills and letters of administration should thenceforth 
 be granted by the Governor, or such person as be should del- 
 egate, under the seal of the Prerogative Office ; that all wills 
 in the counties of Orange, Eichmond, Westchester, or Kings 
 should be proved in New-York, before the Governor, or his 
 delegate, and in the remoter counties in the Courts of Com- 
 mon Pleas — tribunals which had been created in each county 
 by an act of the previous session ; and where the proof was 
 taken in the Courts of Common Pleas it was required to be 
 certified, under the hand of the Judge and Clerk, to the Secre- 
 tary's office in New- York, where probate was granted. Where 
 the estate was under £50, the Courts of Common Pleas ^vere 
 authorized to admit the will to probate, or to grant letters of 
 administration ; and from their decision an appeal was allowed 
 to the Governor, or to the person he might delegate to act for 
 liim. How this jurisdiction was then understood, appears from 
 a letter written the year following, by Clarkson, the Secretary 
 of the Province, to the Lords of Trade, {Col Doc. lY., 28.) 
 " The Governor," he says, " discharges the place of the ordi- 
 nary, (the Bishop,) in granting administration and in proving 
 wills, and the Secretary of the Province acts as EegistrarJ' 
 The Secretary of the Province was an officer independent of 
 the Governor, holding his appointment from the Crown, the 
 duties of which he discharged chiefly through a deputy. Gov- 
 ernor Fletcher, immediately after the passage of this act, in 
 1692, appointed this deputy his delegate, and he took proof of 
 wills, which were afterwards approved and allowed in the 
 name of the Governor. In 1702 Lord Cornbury appointed as 
 his delegate a Dr. Bridges, who was afterwards Chief Justice 
 of the Province. The proof of wills was then taken before 
 him, and upon his certificate letters were granted by the Depu- 
 
15 
 
 ty Secretary, in the name of the Governor. Before Dr. 
 Bridges executors and administrators were sworn faithfully to 
 execute their trust ; the renunciation of executors was formal- 
 ly made before him ; he took proof of inventories ; and this 
 gentleman, who was a man of legal acquirements, and had 
 received in England the degree of Doctor of Laws, was the 
 first in the Province to make use of the title of Surrogate. 
 {Records of Wills in New - York Surrogate's Office^ YIL, 3, 6i, 87, 
 93, 129, 169, 212.) Dr. Bridges having been appointed Chief 
 Justice, Corubury appointed the Deputy Secretary his dele- 
 gate ; and this ofiicer, with the exception of a few interrup- 
 tions and changes, continued to act as the Governor's delegate 
 down to the time of the Kevolution. 
 
 The provision in the Act of 1692, which required all wills 
 in the counties named to be proved in New- York, before the 
 Governor or his delegate, was found to be exceedingly on- 
 erous. Traveling then was very different from what it is now, 
 and to bring witnesses in all such cases to New- York was 
 attended with difl&culty and expense. In view of this incon- 
 venience, Cornbury, acting upon the previous precedent of 
 Ingoldsby, and giving what was perhaps an allowable con- 
 struction to the Act of 1692, commissioned delegates to act for 
 him in all of these counties ; and at a later period, under 
 subsequent Governors, delegates were appointed for the more 
 remote counties. (JRecords of Wills in Kew - York Surrogates 
 Office, VII., 212, 476, 489 ; YIL, 19, 18 ; XII., 187, 199 ; XIII., 
 891 ; Book of Commissions, III, 473 ; Y., 235, 418, 412, 420 ; 
 YL, 4.) At the same time a local delegate was appointed for 
 the city and county of Xew-York, distinct from the Secretarj^ 
 of the Province or Deputy Secretary, who was also commis- 
 sioned to act as delegate. In fact, an attempt was made to carry 
 out, in conformity with the instructions that accompanied the 
 Governor's commission, the distinct jurisdictions exercised in 
 England by the Commissary of the Bishop Diocesan, and the 
 
16 
 
 ordinary or delegate of the Archbishop of Canterbury, or what 
 was then known as the Court held by the Commissary of the 
 Bishop, and the Prerogative Court held by the delegate of the 
 Archbishop or Metropolitan. {Gibson's Codex, 465, 1035.) If 
 the deceased had, at the time of his death, effects in more than 
 one county, or as the ofi&cial document expressed it, "goods, 
 chattels and credits in divers places within the Province," then 
 the Governor exercised exclusive jurisdiction. The will was 
 proved before his delegate, in the Prerogative Court. Letters 
 were issued in the name of the Governor, under the Preroga- 
 tive seal, attested by the signature of the Secretary or the 
 Deputy Secretary, and the whole was recorded in the Eegistry 
 of the Prerogative Court. If the deceased, however, had 
 effects only in one county, then the will was proved before 
 the local delegate of that county. He gave a certificate of the 
 fact, and the will was then taken to the Prerogative Courts 
 where it was approved and allowed, letters testamentary were 
 granted in the name of the Governor, the seal of the Preroga- 
 tive was affixed, and the whole was recorded in the Eegistry 
 of the Court. 
 
 Letters of administration could be obtained only in the 
 Prerogative Court. By the Act of the 22, 23, Car. IL, (Cap. 
 10,) administrators were required to exhibit under oath an 
 inventory of the personal estate of the deceased, in the regis- 
 try of the Court that granted letters ; to make a true and just 
 account, also under oath, to the Court of their administration, 
 by the day fixed in their bond, which was not less than a year; 
 their accounts v/ere to be examined and allowed in that Court, 
 and they bound themselves to pay all proceeds to such persons 
 as the Judge of that Court should limit or appoint. This juris- 
 diction in the Colony was vested in the Prerogative Court, ex- 
 ecutors and administrators accounted before it, and the decree 
 upon final distributions was made there. It had the power to 
 issue citations to compel the attendance of witnesses, and it 
 
17 
 
 heard appeals, where probate or administration was granted 
 by the Court of Common Pleas ; in addition to which it exer- 
 cised a jurisdiction more especially ecclesiastical, such as the 
 granting of marriage-licenses, licenses to schoolmasters, and in 
 taking proof of the due installation of clergymen. {Records 
 of ^yills in New-Yorh Surrogate's Office, IL, 39, 104, 107 ; III., 
 149 ; lY., 129, 182, 213, 221, 230, 250, 328 ; Y., 256, 333 ; YI., 
 1 ; YIL, 474, 484, 491 ; YIIL, 18, 19 ; XIL, 187, 199 ; XIIL, 
 891 ; XXYIII., 106 ; Booh of Inventories, I., 5 ; Record of Admin- 
 istrations, I., p. 2 ; iV: r: Col. Doc. YIL, 830; YIIL, 322, 413 ;' 
 New-Yorh Records of Marriages, Albany, 1860 ; MaunseWs An- 
 nah of Albany, vol. 3, 327, vol. 4, 16.) 
 
 The delegate who represented the Governor in this Court, or 
 as he might be called, the general delegate, was either the 
 Secretary of the Province or the Deputy Secretary, generally 
 the latter. He was empowered by his commission to admit 
 wills to probate, to grant letters of administration, and for that 
 purpose might "affix the prerogative seal of the Province 
 thereto, without any further fiat or allowance." {Booh of 
 Commissions, v. 62.) 
 
 No such general powers were conferred on the local dele- 
 gates. They were authorized by their commissions to take 
 proof of the execution of any will made by a person residing 
 in their county, to swear executors or administrators that they 
 would faithfully execute their trust, or that the inventories or 
 accounts to be exhibited by them in the Prerogative Court 
 were true, and to supervise the estates of intestates. This 
 power of supervising the estates of intestates was, in conse- 
 quence of a clause in the Act of 1692, which provided that 
 where any person died intestate, two freeholders of the town, 
 to be annually elected, should inquire into the real and 
 personal estate of the deceased, and make an inventory of it, 
 and return it, under oath, to the person in the county dele- 
 gated by the Governor to supervise the estates of intestates ; 
 
18 
 
 that the persons delegated should cause the goods and chattels 
 to be sold, retaining the proceeds for those who should appear 
 and have a right to claim them ; and that if the deceased left 
 orphans, and there was no widow or next of kin, that the per- 
 son so delegated by the Governor should have the administra- 
 tion and care of the intestate and the guardianship of the per- 
 sons and estates of the orphans, until they married or reached 
 the age of twenty-one, — a provision that was superseded and 
 became inoperative by subsequent legislative enactments (Booh 
 of Commissions^ III., 473.) With the exception of this pro- 
 vision, the powers of these legal delegates were not mucli 
 greater, in fact, than that of Commissioners of Deeds in our 
 day. They did little else except to administer formal oaths, for 
 if any contest arose upon the execution of a will, it was settled 
 in the Prerogative Court, from which alone letters could issue. 
 At first,^ these local delegates bore only the name of delegates, 
 but about 1746 they began to assume the title of Surrogates, 
 and were thereafter designated by that title in their commissions. 
 There was thus, as in England, a local and a general tribunal, 
 with the distinction^ however, that the local tribunal here 
 was much more limited in its powers, and further, by the fact 
 that its judicial acts, such as taking the proof of wills, had to be 
 approved and ratified under the seal of the Prerogative Court. 
 
 In 1743*. an act was passed for the more speedy recovery of 
 legacies. By this act any person entitled to a legacy or a resi- 
 duary estate under a will, or to any share in the estate of an 
 intestate, might bring an action against the executor or ad- 
 ministrator after it became due, or if no time was fixed by the 
 will, after a year had expired, to compel its payment in the 
 Supreme Court or any Court of Eecord, if it amounted to more 
 than £20, or if under that sum in a Court of Commo-n Pleas ; 
 and if a plea of want of assets was put in, the Court was em- 
 powered to appoint auditors to examine the accounts of the 
 executor or administrator, who were to report how the account 
 
19 
 
 stood, and what sum would remain after the payment of debts, 
 and what proportion the plaintilf was entitled to. The Court 
 was empowered to correct any mistakes or errors in the ac 
 counts reported, and for the amount found to be due the plain- 
 tiff had execution, which act continued in force down to the 
 Kevised Statutes. {Laws of New -York, vol. 1, p. 316; Smith 
 & Livingston's edition, and Street'' s JSfew - York Council of Re- 
 vision^ 281.) This act and the general jurisdiction exercised 
 by the Court of Chancery in such cases, furnished a much 
 more effectual remedy than the Prerogative Court could afford ; 
 and the practice of accounting in that Court therefore fell into 
 disuse, except when an executor or administrator filed his ac- 
 count with the view of obtaining his discharge; and in time 
 the Common Law Courts were but' rarely resorted to, as the 
 remedy in equity was more effi.cient and better adapted for ad- 
 justing the rights of all parties. 
 
 I have thus given, as far as it is now possible to ascertain it, 
 the exact juriscjiction exercised by the Prerogative Court. No 
 minutes of the sittings of the Court, if any were ever kept, or 
 if it ever had any regular sittings, which I very much doubt, 
 are to be found.* 
 
 In fact, its whole business was managed for seventy years 
 before the Kevolution by the Secretary of the Province and 
 
 * The records belonging to it, and every tbing appertaining to wills and the 
 administration of estates, were carried to Albany during the Revolution, before tbe 
 evacuation of the city by the American troops. An Act was passed in IT 99 (2 
 Greenleaf, Law of N. F., 420,) directing the Judge of the Court of Probate to 
 deliver to the Surrogate of the City and County of New- York all bocks, records, 
 minuies, documents, and papers belonging to the Court of Probate before 1st of 
 May, 1787, in pursuance of which the late Sylvanus Miller, who was then Surro- 
 gate, went to Albany in 1800, and brought away every thing that could then bo 
 found. I presume that if any minutes had ever been kept of the Court, they 
 would have existed then, and would have been discovered by Judge Miller, 
 as the chain of records which he brought here and arranged and classified are, for 
 tbe whole colonial period, very complete and perfect. 
 
20 
 
 his Deputy, with little interference from the Governor, and 
 with but little knowledge on his part respecting it. In 
 connection with the Registry, which the Secretary claimed 
 as a part of his office, every thing was done to keep the 
 Court exclusively under the control of this officer. It was 
 entirely managed by his Deputy, who fulfilled many func- 
 tions, which were so mixed up as the acts of one and the 
 same person that it was difficult even then to distinguish the 
 different capacities in which he acted. The precise character 
 of his powers or those of the Secretary, together with the ex- 
 tent or nature of the authority, which, in virtue of the Gover- 
 nor''s prerogative, was vested in the Prerogative Court, were 
 matters of great perplexity then, and a constant subject of 
 complaint and remonstrance. (See Gov. Moore^s Letter to the 
 Lords of Trade, and Gov. Tryonh upon the same subject. Col- 
 Doc. VII., 130, 187, 283, 323.) One of the last of the Secre- 
 taries, Clark, held no less than twelve distinct offices, nearly all 
 •of them connected with the administration of justice; and his 
 Deputy, Goldsbrow Banyan, who held that office, with but few 
 interruptions, from 1716 to the Revolution, in addition to act- 
 ing as the general assistant of his principal, was examiner 
 of the Prerogative Court, and the local delegate for the city 
 and county of ]^ew-York, while at the same time he fulfilled 
 the function of general delegate, or, as Gov. Tyron describes 
 the office, acted as principal Surrogate. A course of manage- 
 ment which was designed to baffle all inquiry then, and which 
 succeeded in doing so, (see Iiejwrt of the Lords of Trade, 
 ^Y. Y. Col. Doc. YIIL,413,) was not very easy to unravel after- 
 wards ; and therefore when the Revolution broke out, very con- 
 fused ideas prevailed as to the nature of the jurisdiction of this 
 Court, and even as to its name — it being sometimes called the 
 Prerogative Court, and sometimes the Court of Probate, a con- 
 fusion of names which led to the impression that these were 
 two tribunals known by these names before the Revolution, an 
 
21 
 
 impression which . I formerly entertained {Dahjs Jvdicial Tri- 
 hunals of JSr. Y., p. 53; Bee. of Com.,\., 70,412, 418; VL, 
 201.) — whereas there was in reality but one. The Legislature 
 in 1778 meant to sweep away every authority vested in this 
 Court, in virtue of the Prerogative of the Colonial Governors, 
 supposing it to be greater than it actually was, and to consti- 
 tute in its place a Court thereafter, to be held by a single judge, 
 having the same jurisdiction in testamentary matters, and in 
 cases of intestacy, to be known as the Court of Probates ; and 
 accordingly in an act passed in that year it was declared that 
 the Judge of the Court of Probate should be vested with the 
 powers and authority, and have the like jurisdiction in testa- 
 mentary matters which the Governor of the Colony of New- 
 York, while it was subject to the crown of Great Britain, had 
 and exercised as Judge of the Prerogative Court, or the Court 
 of Probates of the Colony, except the power of appointing Sur- 
 rogates. (1 Laivs of jSfeiV'Yorh, 23, Jones & Yarick edition.) 
 
 From this period to 1789, this new tribunal, the Court of 
 Probates, continued to exercise the same jurisdiction in such 
 matters as the Prerogative Court had formerly done. The 
 proofs of wills, where the deceased had effects in more than one 
 county, were taken before the Judge of that Court, and before 
 the Surrogate, where the effects were exclusively in one county ; 
 and in both cases the proof of the will was "approved and 
 allowed," in the name of the people, before the Court of Pro- 
 bates where it was recorded, and from which letters issued under 
 the seal of the Court, attested by the signature of its Clerk. Let- 
 ters of administration were also granted there, and all inven- 
 tories" were filed there ; and from its decisions an appeal lay to 
 the Court of Errors. This Court held stated sittings, at regu- 
 lar periods, in different parts of the State, until 1783, when it 
 was fixed in the city of New York until 1787, after which it 
 was permanently removed to Albany ; and up to 1797 the Sur- 
 rogates of the different counties continued to exercise exactly 
 
22 
 
 the same powers whicli tliej did before the Revolution. {Records 
 of Wills in N. F. Surrogate's Office, XXXIL, 50, 360 ; XXXIII., 
 2, 19, 59, 316, 421, 438 ; XXXIV., 436 ; XXXY., 290, XXXVL, 
 2 ; XXXYII., 316, 427 ; XXXIX., 286, 436 ; 1 Records of In- 
 ventories , 1 ; Records of Administrations, vol. 4, 5, 6, 7.) 
 
 In that year, 1787, an important change was made ; an act 
 was passed, (2 Laws of New - York, Jones & Yarick's Ed. 71,) 
 by which the granting of probate and of letters of administra- 
 tion was taken away altogether from the Court of Probates, 
 except in certain specified cases, and conferred upon the Surro- 
 gates of the different counties, from whose decision, in contest- 
 ed cases, an appeal was allowed to the Court of Probates. This 
 act provided that the Governor, with the consent of the coun- 
 cil of appointment, should commission a Surrogate for every 
 county in the State, and empowered each Surrogate to take 
 proof of the last wills and testaments of persons dying in his 
 county, or who were inhabitants of it if they died from home, 
 to issue probate and grant letters testamentary thereon, or let- 
 ters of administration with the will annexed ; or, where such 
 persons died intestate, to grant letters of administration — such 
 letters to issue in the name of the people, and to be tested in 
 the name of the Surrogate, and sealed with the seal of his office. 
 This act further provided that each Surrogate should record all 
 wills proved before him, with the proof thereof, and all letters 
 testamentary or of administration issued by him, with all things 
 concerning the same, and directed that when administration 
 was granted by him, that the inventory should be " exhibited " 
 in his office. 
 
 Where persons died out of the State, or within it, who were 
 not inhabitants, the act directed that their wills should be proved 
 before, or administration of their personal estates should be 
 granted by, the Judge of the Court of Probate ; and in such 
 cases, the inventory was " exhibited " into the registry of that 
 Court. This act also gave the Court of Probates authority to 
 
23 
 
 compel administrators to account in cases of intestacy, to de- 
 cree and settle the order of distribution, after the payment of 
 debts and expenses, and to compel the payment of the amounts 
 so decreed. It was empowered, also, to hear and determine all 
 causes touching any legacy or bequest in any last will and testa- 
 ment, payable out of the personal estate of the testator, and to 
 compel payment of it. This was a provision virtually empow- 
 ering the Court to call executors to account, which was an im- 
 portant change, as, before that time. Probate or Ecclesiastical 
 Courts had no power by the canon law, or by statute, to com- 
 pel executors to account. {Sparroio v. Norfolk^ Noy's E. 28 ; 
 Gihsonh Codex^ 466, 478.) Authority was also given to the 
 Court to enforce its decrees for the payment of distributive 
 shares, or bequests, or legacies, by execution against the person; 
 and by the twentieth section of the act it was declared that 
 "the Courts of the said Surrogate and the said Court of Pro- 
 bates, in the matters submitted to their cognizance, respectively, 
 by this act, shall proceed according to the course of the Courts 
 having, by the (Common law, jurisdiction of like matters.'' 
 
 In 1786, the Court of Probates, where the personal estate 
 was insufficient to pay debts, was empowered to order the sale 
 of the real estate, and make distribution of the proceeds among 
 the creditors, (1 Greenleafs Laiis, 238 ;) but when the Court was 
 removed permanently to Albany in 1797, (3 Greenleafs 391,) it 
 was found very inconvenient to resort thither in all cases for 
 that purpose; and accordingly, in 1799, {Laws of N. Y., 1799, 
 Andrews's ed., 721,) an act was passed conferring this power 
 upon the Surrogates, when the lands of the deceased were ex- 
 clusively in one county ; and by the same act they were author- 
 ized to admit wills to probate, or to grant letters of adminis- 
 tration where persons died out of the State, or within it, who 
 were not inhabitants. 
 
 In 1801, the Surrogates were clothed with the same power as 
 the Judge of Probate to cite administrators to account, to de- 
 
24 
 
 cree distribution, or the payment of bequests and legacies, and 
 compel it by execution, (1 W€bsier''s Laws, 817, 825 ; Seymour 
 V. Seymour, 4 John. C, R. 410 ; Foster v. Wilber, 1 Paige, 405 ; 
 Daten v. Hudson, 6 Cow, 221.) In 1802 they were authorized 
 to appoint guardians for infants as fully as the Chancellor 
 might do, (3 Webster, 158 ;) in 1806, to order the admea- 
 surement of dower of lands within their county, upon the 
 application of the widow, the heirs, or the guardians of 
 minors, (3 Webster, 816;) in 1807, to exercise powers as ex- 
 tensive as the Court of Probates in ordering sale of lands for 
 the payment of debts, (5 Webster, 138 ;) in 1810, to order the 
 mortgaging or leasing of the land of testators or intestates for 
 the payment of debts, where any infants were interested ; and 
 all these laws, whether relating to the Surrogates or to the 
 Court of Probates, were incorporated in one general act in the 
 revision of 1813, in which act are also embraced some other 
 general powers, such as compelling the production of wills, 
 documents, or writings, the attendance of witnesses, and* the 
 power of punishing for contempts; and by an act passed in the 
 same year, they were authorized to complete tlie unfinished 
 business that might be left by their predecessors. {Laivs of 
 1813, p. 139.) 
 
 In 1819, they were empowered to confirm sales of real estate 
 ordered by them for the payment of debts, and to direct con- 
 veyances to be made hj executors or administrators. {Laivs of 
 1819, p. 214.) In 1821, to institute an inquiry respecting the 
 personal estate of intestates not delivered to the public admin- 
 istrator, nor accounted for in a lawful and satisfactory manner, 
 by the person into whose hands it was supposed to have fallen. 
 
 By an act passed in 1823, the Court of Probates was abol- 
 ished. Its appellate jurisdiction on appeals from Surrogates 
 was transferred to the Court of Chancery, and whatever other 
 jurisdiction it possessed was by this act vested in that Court 
 {Laics 0/ 1823, p. 62.) 
 
25 
 
 From 1823 to the passage of the Eevised Statutes the only 
 acts of a general character relating to Surrogates were acts 
 directing them to record all letters testamentary and of admin- 
 istration, all appointments of guardians, and all orders and 
 decrees upon the sales of real estate made by themselves or 
 their predecessors. (Laws of 1828, p. 133.) 
 
 It will be seen, as the result of this lengthened examination, 
 that the powers conferred upon Surrogates were from the be- 
 ginning carefully enumerated in the commissions under which 
 they were first appointed, and by subsequent legislative acts ; 
 that what was not granted to them was vested before the Kev- 
 olution either in the Surrogate's Court, the Supreme Court, the 
 Court of Common Pleas and the Court of Chancery, and 
 afterwards in the Court of Probates. That when the Prerog- 
 ative Court was abolished in 1778, its jurisdiction in testa- 
 mentary matters and in cases of intestacy was transferred to 
 the Court of Probates, and that when that Court was abol- 
 ished in 1823, ij:s jurisdiction was vested in the Court of 
 Chancery. The Supreme Court and the Courts of Common 
 Pleas had, as has been shown under the provision in the act 
 of 1743, the power of compelling executors or administrators 
 to account in actions brought to recover legacies or distribu- 
 tive shares, and wills of real estate were proved in the Su- 
 preme Court or the Court of Common Pleas until the passage 
 of the Eevised Statutes. This, however, was a mere formal 
 proceeding, and in the Supreme Court the proof in the shape 
 of affidavits previously prepared out of court was made pro 
 forma before all the Judges of the Court sitting in l)anc. 
 
 In tracing the history of these separate jurisdictions, I re- 
 gret to have had occasion to go into such minuteness of detail, 
 but it was absolutely essential that the exact authority which 
 was vested in each tribunal should be distinctly shown to take 
 away any foundation for those " serious questions " of which 
 the Revisors were so needlessly apprehensive. 
 
26 
 
 I have pointed out all the powers granted to Surrogates 
 throughout the whole course of our Colonial and State history 
 down to the passage of the Revised Statutes, and that they 
 may be taken collectively, I will recapitulate them : 
 
 I. To take proof of the execution of last wills and testa- 
 ments, and to admit them to probate. 
 
 II. To grant letters testamentary and of administration. 
 
 III. To swear executors or administrators to the truth of 
 the inventories and accounts exhibited by them. 
 
 lY. To call administrators to account, to decree the just 
 and equal order of distribution after the payment of debts 
 and expenses, to compel administrators to observe and pay 
 the same, and to enforce it by execution against the person. 
 
 Y. To hear and determine any cause touching a legacy or 
 bequest in any last will and testament, to decree the payment 
 of a legacy or bequest, and to enforce it by executioa against 
 the person. 
 
 YI. To order the admeasurement of dower upon the applica- 
 tion of the widow, or of any heir, or of the guardian of a minor. 
 
 YII. To order the sale of real estate for the payment @f 
 debts, when the personal estate was insufficient, and when the 
 real estate proved insufficient to divide the proceeds after the 
 payment of expenses proportionally among the creditors ; to 
 confirm all such sales and direct conveyances to be made by 
 executors or administrators, and to order the mortgaging or 
 leasing of the real estate of any testator or intestate for the 
 same purpose when infants were interested. 
 
 IX. To appoint guardians for infants as fully as the Chan- 
 cellor might do. 
 
 X. To record all wills proved before them with the proof 
 thereof, letters testamentary and of administration granted by 
 them, with all things concerning the same, all orders or de- 
 crees made by them for the sale of real estate, and all instru- 
 ments, writings or documents of a like nature left unrecorded 
 
27 
 
 by their predecessors, and to complete the unfinished business 
 of their predecessors. 
 
 XL To institute inquiry respecting the personal estates of 
 intestates not delivered to the public administrator nor ac- 
 counted for lawfully by persons into whose hands it was sup- 
 posed to have fallen. 
 
 XII. Authority to compel the attendance of witnesses, the 
 production of wills, documents or writings, and for disobe- 
 dience in such cases the power to commit the party offending 
 for contempt. 
 
 XIII. And lastly, in all matters submitted to their cogni- 
 zance they were authorized to proceed according to the course 
 of the Courts, having by the common law jurisdiction of 
 such matters, except so far as they were restricted by statute, 
 and tbey had such incidental powers as were necessary to 
 carry those which were granted into effect. (See Clowes Com- 
 mission^ Rec. of Coins. III., 473.) 
 
 This enumeraJ^on embraces all that was ever granted to 
 them down to the passage of the Eevised Statutes. In that 
 revision the jurisdiction of the Surrogates' Courts was con- 
 siderably enlarged, but nothing was taken away. By the 6th 
 subdivision of § 1, title 1, Chap. 2, Part III., of the Eevised 
 Statutes, they were "authorized to administer justice in all 
 matters relating to the affairs of deceased persons according 
 to the provisions of the Statutes of the State." Kow, all the 
 powers which had ever been conferred upon the Surrogates or 
 Surrogates' Courts, from the earliest colonial period down to 
 this revision, either in the commissions originally granted by 
 the Governors or in the Colonial Statutes, were enumerated 
 in statutes passed under the State Government, from the Act 
 of the 20th of February, 1787, to the Act of the 81st of 
 March, 1828. There was but one not expressly named — that 
 of swearing executors and administrators to the truth of their 
 inventories or accounts; but this was embraced by the general 
 
28 
 
 provision in the Act of 1787, authorizing the Surrogates' 
 Courts to proceed in the matters submitted to their cognizance, 
 according to the course of the Courts having by the common 
 law jurisdiction in like matters, which Courts always had the 
 power of swearing executors or administrators to the correct- 
 ness of their inventories and accounts. {Consefs Practice of 
 jSj)mtual Courts, 11, 112, Edition of 1708.) The difficulty, 
 however, caused by the Kevised Statutes, was the incorpora- 
 tion of the clause previously referred to, declaring that no 
 Surrogate should, under pretext of incidental power or con- 
 structive authority, exercise any jurisdiction not expressly 
 given by some statute of the State ; and the doubt which this 
 provision produced was whether these Courts could exercise 
 even those incidental powers, such as adjourning from day to 
 day, swearing witnesses, etc., which were necessary to carry 
 those which were granted into effect. In the early commissions 
 to the Surrogates, there was a clause expressly reserving to 
 them all such incidental powers. (See Clowes Commission, Eec. of 
 Coms., III., p. 473.) But no clause of a like nature was con- 
 tained in any statute passed under the State Government, or 
 during the Colonial period ; and the question that was raised 
 under this very stringent provision was whether such incident- 
 al powers could be exercised, as they were not " expressly 
 given by some statute of the State." There was, in reality, no 
 solid ground for this doubt, as they had never been taken 
 away. They were, in my judgment, sufficiently embraced in 
 the general provision to which I have previously referred in 
 the Act of 1787, or, if they were not, they followed as inci- 
 dental to the powers granted. If, however, there was any 
 ground for the belief that they had been taken away, the 
 repeal of this provision in 1837 restored them ; but it restored 
 nothing else, as these Courts had, by the clause of the Revised 
 Statutes which I have quoted, every other power which they 
 had previously possessed. 
 
29 
 
 Having arrived, then, at a clear understanding of the exact 
 extent of the authority now vested by law in the Surrogates' 
 Courts, it remains to inquire how far the authority which 
 has been conferred upon them entitles them to revoke, alter 
 or change their final acts or decrees. The only direct statutory 
 provisions of the kind are the clauses of the Eevised Statutes, 
 empowering them to revoke letters of administration, or of 
 guardianship in the cases therein specified, or to revoke the 
 probate of a will, upon a re-hearing, where the application 
 is made by next of kin, within a year after the probate was 
 granted, {;6 Rev. Siat. 142, 162, 163, 16-1, 5th ed.) Whatever 
 other power they possess in this respect, is derived from the 
 general clause in the Act of 1787, directing the Court of 
 Probates and the Surrogates' Courts to proceed in the mat- 
 ters submitted to their cognizance, according to the course 
 of the Courts having by the common law jurisdiction of like 
 matters. 
 
 It has already been seen that the Surrogates' Courts were 
 subordinate to the Court of Probates, and that the jurisdiction 
 of that tribunal was transferred to the Court of Chancery, 
 the entire jurisdiction of which was afterwards, and is now, 
 vested in the Supreme Court. In 1787, when this act was 
 passed, the Courts which then, by the common law, had juris- 
 diction analagous to that of the Surrogates' Court and the 
 Court of Probates were tribunals in England known by the 
 general appellation of the Ecclesiastical or Spiritual Courts, a 
 jurisdiction that was entirely swept away in 1857, upon the 
 creation of a Greneral Court of Probate for the whole kingdom. 
 (20 and 21 of Victoria, cap. 77.) They were all of them infe- 
 rior Courts of special and limited jurisdiction, (3 Black. Com, 
 67 ; Tomlui's Laia Dictionary Courts ; Paff v. Kinney, 1 Bradf. 
 4,) and composed a very numerous family, as there were, at 
 one period, in England, no less than three hundred and eighty 
 various probate jurisdictions. They were, nearly all of them, 
 
80 
 
 local Courts, known by various names — Diocesan, Peculiars, 
 Royal Peculiars, Manorial, Court of Hustings, Orphans' Court, 
 &c., &c. ; many of them having different usages and modes 
 of procedure, while some, like the Prerogative Courts of York 
 and Canterbury, exercised in certain cases powers analogous to 
 those of our Surrogates throughout the Kingdom, {Gibson's 
 Codex, 978, and title XXIV.; A7jliffe's Pareregon 91, 417, 418, 
 531; Bohwi^s Customs of London^ 228.) 
 
 ■ The tribunals, however, whose powers and modes of proce- 
 dure approached most nearly to the courts held by our Surro- 
 gates when this act was passed in 1787, and to which it is 
 manifest the framers of this statute meant to refer, were the 
 Courts held in each diocese by the Commissary or Surro- 
 gate of the Bishop, and the more general tribunal held by 
 the ordinary of the Archbishop of Canterbury, known as the 
 Prerogative Court. 
 
 These Courts were recognized by the common law as having 
 jurisdiction in the matters of which they took cognizance, in 
 which they proceeded according to the course of the civil and 
 the canon law. 
 
 They were not Courts of Record, and never had the broad 
 general powers to review and correct their proceedings, pos- 
 sessed by Courts of that high character. (1 Inst. 821 ; 3 Black, 
 Com. 67 ; Doran v. Dempsey, 1 Bmdf. 491; Corwin v. Merritt, 
 8 Baro. S. C. 341 ; People v. Corlies, 1 Sandf. S. C. R. 247 ; 
 Dakin v. Hudson, 6 Cow. 221.) Still, as indispensable to the 
 administration of justice, they had and exercised, as have the 
 Surrogates' Courts in this State to a certain limited extent, the 
 right of revoking acts done by them, as where a decree is ob- 
 tained by collusion or fraud, (Wilkins v. Brunt, 1 Curties Ecc. 
 R. 261 ; Toller on Executors^ 73. 2 Am. ed.,) or where a later 
 will is produced (Laton v. Laton, 1 Hagg. Ecc. R. 688 ; Went- 
 ivortJis Office of Executor^ 111, 112, 14th ed. ; Williams on 
 Executors^ 478,) or where after a will is admitted to probate 
 
the party supposed to be dead appears, (as was the case in re 
 Kapier, 1 Pliillm. Ecc. R S3.) They could revoke letters of 
 administration for any just cause, (Granson v.Dom. SJcinner's R. 
 155 ; Taylor v. Shaw, 3 Jones R. 161 ; Wms. on Executors^ 
 478, Xote 1, 479,) or correct mistakes which were the result 
 of oversight or accidentj (Sipperly v. Baucos, 24 New -York 
 R. 46; Shannessy v. Allen, 1 Lee Ecc. R. 9; Cargill v. 
 Spencer, 3 Hagg. Ecc. R. 146,) or where through an acci- 
 dent or mistake a decree was taken by default, they might 
 open it, and allow the parties in default, to be heard, (Pier v. 
 Hastings, 1 Barb. C. R. 452,) or where after a decree for dis- 
 tribution had been made, but before the fund was actually dis- 
 tributed, a legatee not known to be in existence appeared, the 
 decree might be opened so as to allow him to receive his dis- 
 tributive share, (Farrell v. Smith, 2 Ball & Beatty^ 337 ; 3 Rev. 
 StcLtutes, subdiv. 3, § 1, title 1, Chap. II., Part III.,) or where 
 they had acted without acquiring jurisdiction of the person, or 
 where a party in interest had not been cited, or where no 
 guardian had been appointed to look after the rights of an 
 infant, they might open their decree and allow the party 
 affected by it to be heard, or where an order was actually made, 
 but not entered, through mistake or accident, they might order 
 it to be entered nunc protunc^ (Butter v. Emmet, 8 Paige, 12,) 
 and generally might vacate any act or proceeding done by 
 them which was irregular and void. (Trimbleton v. Trimble- 
 ton, 3 Ragg. Ecc. R. 243 ; Skidmore v. Davis, 10 Paige, 318 
 Vredenburgh v. Calf, 8 Paige, 127; Corwin v. Merritt, 3 Barb. 
 S. C. E. 311 ; Proctor v. Wanmaker, 1 Barb. C. E. 302 ; 
 Bloom V. Bendick, 1 mil, 139.) 
 
 I have pointed out, so far as it is shown by the authoritj^ of 
 adjudged cases, the extent to which these Courts have exer- 
 cised this limited power, and the whole may be summed up 
 briefly in the statement that they may undo what has been 
 done through fraud, or upon the supposition that they had 
 
32 
 
 jurisdiction, or on the assumption that a party was dead who 
 is living, or that there was no will ; or they may open decrees 
 taken by default, or correct mistakes, the result of oversight 
 or accident, and in this State revoke the probate of wills or 
 letters of administration, or of guardianship in the cases pro- 
 vided for by statute. These are all powers existing of neces- 
 sity, and indispensable to the administration of justice, under 
 which may be embraced any other exercise of jurisdiction of a 
 like nature or character. But when, as in this case, all the 
 parties in interest have been represented at the hearing, and 
 the Court has given its final sentence or decree, I know of no 
 authority showing that these Courts have ever exercised the 
 general power of opening and reversing it again, upon the 
 ground that they had erred as to the law, or had decided 
 erroneously upon the facts. 
 
 No authority has been cited by the learned and experienced 
 counsel, who has argued so strenuously before me for the ex- 
 istence of the right, and if any could be found I am sure it 
 would not have escaped his vigilance. I have myself examined 
 all the works relating to the practice of Ecclesiastical Courts 
 to which I have had access, and which embrace Constet's, ^ 
 Bayo's, Cootes, Gibson^ s Codex^ Ayl{ffe''s Pareregon^ Oodolphins 
 Orphans'* Legacy^ CocJcburn^s Assistant, The Clerics Instructor^ 
 Swinhurne on Wills^ Practice of Ecclesiastical Courts in 1 Brown'' s 
 Civil and Admiralty Laio, and Burns^s Ecclesiastical Law, and I 
 find nothing to countenance it, but the contrary, (Watkins v. 
 Bligh, 1 Carties Ecc, P., 261) 
 
 There is in the Ecclesiastical Courts what is known as " re- 
 scinding a conclusion." After the cause is ended upon both 
 sides, and the Court has given its conclusion upon the facts, a 
 motion may.be made to it to rescind the conclusion and allow 
 the party applying to submit additional evidence, (Ilammerton 
 V. Ilammerton, 2 Ilagg. Ecc. P., 1 ; on appeal, id., 628 ; In- 
 gram V. Wyath, 1 Ilagg. ^ 101; Scale v. Price, 2 Consistory P., 
 
33 
 
 191 ; Middleton v. Micldleton, 2 Hagg.^ 134 ; Donnellan v. 
 Donnellan, id., supplement^ 144; Cargil Spence, id., 
 ment^ 146 ; Henley v. Doddridge, ibid^ 146; Shannessj v. 
 Allen, 1 Lee Ecc. R, 9.) 
 
 It is allowing the party against whom the conclusion oper- 
 ates to supply evidence, the want of which or the insufficiency 
 of which is indicated in the opinion or conclusion of the Judge, 
 such as when the proof of the identity of a particular party is 
 not sufficient, or there is any other defect in the proof, the 
 want of which is pointed out by the Judge, which application 
 is granted or not, in the sound discretion of the Court. It may 
 be made before publication, (that is, when the depositions are 
 completed, and a day has been fixed for the hearing ;) but if made 
 after, the party must show that the facts came to his knowledge 
 afterwards. (Webb v. Webb., 1 Ragg. Ecc. i?., 349.) It is in 
 fact analogous to the practice in Common Law Courts of re- 
 ceiving additional evidence after the Court has indicated its 
 intention to non-suit, or of granting a new trial after verdict, 
 upon the ground of newly discovered evidence. 
 
 The course of procedure was uniformly this : When the de- 
 positions were completed a day was assigned for the hearing. 
 On that day the parties were heard, after which the Court pro- 
 nounced its sentence, and the Clerk or one of the writers of 
 the Court was instructed to draw it up formally in v/riting, and 
 a day was assigned for the party against whom it operated, to 
 show cause why it should not be made definite. Before it was 
 made definite the party might move the Court to rescind its 
 conclusion, and receive additional evidence ; but if no such 
 motion^ was made, and on the day assigned no cause was shown, 
 or if the party failed to appear after being called three times, 
 the sentence became definite, and the party had no further 
 remedy except by appeal to a higher tribunal — the time for 
 which was limited. A decree, whether interlocutory or defin- 
 ite, was final, and there was, in the language of Constet, " no 
 
34 
 
 hope of another sentence or decree. It put an end to the 
 thing." {Constefs Practice of Spiritual or Ucclesiastical Courts^ 
 Chap, y., YI, Part III, edition of 1708; Oughton's Ordo 
 Judiceorum, tit. 124 to 131.) 
 
 This was the course of procedure in these Courts when the 
 Act of 1Y87 was adopted, and though it was afterwards modi- 
 fied in some particulars, it underwent no change as respects the 
 conclusive and final character of the decree or sentence. (3 
 Burms Ecclesiastical Law^ 207, 211, 217, 218, Philmore's edi- 
 tion ; 1 BrowTbS Civil and Admiralty Laio^ 451, Am. ed.) 
 
 The practice which prevailed in the Court of Chancery, of 
 giving relief after the decree was enrolled, by a bill of review, 
 (O'Brien v, O'Connor, 2 Ball iSo B., 154 ; Young v: Kelly, 16 
 Yes.^ 343,) or of entering a caveat after the decree was ren- 
 dered, but before it was enrolled, and which entitled the party 
 dissatisfied with the decision to petition for a reheariog upon 
 the certificate of counsel, was never adopted in the Ecclesias- 
 tical Courts. There was, by the canon law, the practice of 
 entering a caveat to stop proceedings where a question was 
 raised as to admitting a will to probate, or as to the right of 
 administration, which it was said stood in force for three 
 months ; but this was a mere precautionary measure to prevent 
 the ordinary from doing what was wrong, and was not the 
 foundation of any proceeding to obtain a re-hearing or the re- 
 versal of a decree or sentence. {Gihsoji's Codex^ 778 ; Go- 
 dolplMs Orpliqins' Legacy^ Ph., 2, c. 33, § 5 ; 3 Burns's Ec- 
 clesiastical Law^ 224, Philmore's edition ; Trimbleton v. Trim- 
 bleton, 3 Eagg. Ecc. R, 243.) 
 
 There was, in fact, no occasion for adopting in these Courts 
 the practice which prevailed in Chancery of a bill of review 
 or allowing a re*hearing, or, as in the Common Law Courts, of 
 directing a new trial, as all that was procured in these Courts by 
 a bill of review, a re-hearing or a new trial, was obtained in the 
 Ecclesiastical Courts by an appeal. The case came up on ap- 
 
35 
 
 peal exactly as it was presented to the Court below. The 
 j^ppellate Court could review the facts as well as the law. 
 They might come to a different conclusion upon a contested 
 question of fact from that which was arrived at in the tribunal 
 below, and might in their discretion allow new evidence to be 
 given. If the probate of a will, for instance, was reversed 
 upon appeal, and the parties could supply the evidence essen- 
 tial to prove its due execution, the evidence was given, not in 
 the Court below, but in the Appellate Court, and the will was 
 admitted to probate there. {CocJchurn's Cleric's Assistant, 282, 
 Dublin ed. of 1703 ; 1 Brown^s Civil and Admiralty Laic, 500, 
 Am, ed. ; Hammerton v. Ilammerton, 2 Hagg. Ecc. i?., 623 ; 
 Burgoyne v. Free, 2 Adams Ecc. B.^ 405 ; Eagleton v. King- 
 ston, 8 Vesey, 466; Williams v. George, 3 Curties Ecc. R., 343 ; 
 Eochefort v. Nugent, 1 Brown P. (7., 590; Toller^ s Law of 
 Executors^ 75, 2 Am. ed. ; Jephson v. Keirs, 3 Knapp^ 136.) 
 In the Common Law Courts it is very different. There the 
 verdict of the jury^upon a contested question of fact is con- 
 dusive; and if the Judge before whom the cause was tried has 
 committed any error cf law which might possibly have influ- 
 enced the verdict, there is no remedy but to order the cause to 
 be tried over again. Whatever, therefore, could be obtained 
 in the Court of Chancery by a re-hearing, or in the Common 
 Law Courts by a new trial, was obtainable in the Ecclesiastical 
 Courts by an appeal; and that being the remedy, the inferior 
 Courts never exercised tke general power of reviewing their 
 decrees for errors of law or of fact The Surrogate's Court 
 here holds exactly the same position. The Supreme Court to 
 which the appeal lies, may, if it think proper, receive additional 
 evidence, which it did in the appeal from this Court in the 
 case of Ferrie v. The Public Administrator, (4 Bradf. 28. — 23 
 N. Y,R, 90,) I am therefore very clear upon the point, that it / 
 can not exercise a power which is in no way incident to those 
 enumerated in the Revised Statutes, and which never belonged 
 to the Ecclesiastical Courts exercising a like jurisdiction. 
 
36 
 
 It is next claimed that the Surrogate never acquired juris- 
 diction of the person of the petitioner, upon the ground that 
 she was not cited in the mode require.d by law. On recurring 
 to the affidavit, it appears that the citation was served upon 
 her in the presence of her mother, her testamentary guardian, 
 that she was informed, and had full knowledge of its meaning 
 and ejffect, she being then in her sixteenth year, — which she, 
 however, denies ; that she attended upon the accounting, and 
 that she knew of the matters which took place there, which 
 she also denies; and that Gabriel Van Cott, Esq., an experi- 
 enced person in matters of account, the Chief Clerk in the 
 Surrogate's Office, was appointed by the Court her special 
 guardian upon such accounting ; that he acted upon the ap- 
 pointment, and made an examination of the books, documents 
 and papers belonging to the estate ; that Alexander W. Brad- 
 ford, Esq., the former Surrogate, acted on behalf of a sister, 
 and for a brother of the petitioner ; and that the executor's 
 account was made under the directions of Yan Cott, and was 
 examined and approved by Judge Bradford. The service of 
 the citation was in the mode pointed out by the Chancellor 
 in Kellett v. Eathbone, (4 Paige, 106,) upon the petitioners in 
 the presence of her legal guardian. It was sufficient, therefore, 
 to give the Surrogate jurisdiction, and her general guardian 
 having an interest adverse to her, a special guardian was ap- 
 pointed by the Court, which was the proper course, (Turner 
 V. Felton, 2 Philm. Ecc. Rep.^ 98; Kellett v. Eathbone, snj)ra,) 
 and even if there had been any defect in the citation or in 
 the service of it, the petitioner actually appeared before the 
 Surrogate, which was sufficient to give him jurisdiction to ap- 
 point a special guardian to act for her. {Constefs Practice of 
 Spiritual Courts, 51, 52; Ex parte Dawson, 3 Brad/., 130.) 
 
 It is alleged that by the fourth section of Title 3, Chap. 
 VIIL, Part II. of the Eevised Statutes, a guardian could not be 
 appointed to act for the petitioner in this proceeding, unless 
 
37 
 
 upon her own application by petition to the Surrogate, as she 
 was over fourteen years of age. The section, however, to 
 which the counsel refers in support of this objection relates to 
 the appointment of general guardians of the persons and es- 
 tates of infants, and not to the appointment of special guard- 
 ians to act for them in a suit or proceeding, or as they are 
 commonly called, guardians ad litem^ (Kellinger v. Koe, 7 
 Paige^ 862.) The authority to appoint guardians ad litem is 
 not only found in the general powers given to Surrogates in 
 the Seventh Subdivision of Section 1, Title 1, Chapter IT., to 
 appoint guardians for minors, which is to be interpreted in 
 connection with the Twentieth Section of the Act of 1787, 
 before referred to ; but this is an authority which is incident 
 to every Court of Justice, whether it be of inferior or of gen- 
 eral jurisdiction, and may be exercised by a Justice of the 
 Peace. [Co. Lit, 89, a. n. 3 Black. Com. 427; 2 Kent. Com. 
 229; Mackey 'y. Gray, 2 John's R., 192; Clark 'y. Gilmartin, 
 12 N. Hamp. 515.), In the appointment of guardians ad lilem^ 
 the consent of the infant is not necessary, for if he refuse to 
 name a guardian, the Court will appoint one to act for him. 
 (Stone V, Atwell, Strange R. 1076 ; Knickerbocker v. De Freest, 
 2 Paige R., 304,) and this is the practice in Ecclesiastical 
 Courts, (4 Burns' s Ecclesiastical Law, 151, by Philimore, 9th 
 London edition.) ISTor is it necessary that the infant should ac- 
 tually appear in Court, (Knickerbocker z;. De Freest, 2 Paige R.. 
 804; Mason v. Denniston, 15 Wend. 67; Peck v. Holstead, 21 
 III R., 219 ; Jack v. Davis, 29 Geo. R, 219.) Formerly the 
 practice was, where the infant lived at a distance, to appoint 
 a commissioner dwelling in the vicinity of the infant, to se- 
 lect a fit person to act for him, (Constet's Practice of Spiritual 
 Courts, p. 51, 52, 53,) but even this can now be dispensed 
 with, for if a person offers to appear for the infant, known to 
 the Court to be respectable and capable, he will be appointed 
 at once. (Smith v. Palmer, 3 Beav., E. 10; Jongsina v. Pfiel, 
 9 Ves. 387; Banta v. Calhoun, 2 A. K. Marsh, 167; Knicker- 
 
38 
 
 bocker v. De Freest, 2 Pai(/e, 808, and note of the Eeporter ; 
 Conklin v. Hall, 2 JBarh. C. R., 186.) 
 
 Nothing to the contrary appearing in the evidence before 
 me, I must presume that the Surrogate appointed the guardian 
 acl litem, on the return of the citation, according to the estab- 
 lished practice of the Court, (Downing v. Euger, 21 Wend., 
 184 ; Eex v. Hawkins, 10 Fast 211 ; Monk v. Butler, 1 Rol 
 R., 83; Powell v. Millbank, 3 Wils. R, 855; Foot u Stevens, 
 17 Wend., 483 ; Willard on Executors, 82.) 
 
 The petitioner, therefore, being properly before the Court, 
 the Surrogate acquired jurisdiction to make any order or de- 
 cree in the matter affecting her interests. The statute declares 
 that the final settlement of the account and the allowance 
 thereof by the Surrogate shall be as against all persons interested 
 in the estate, upon whom the citation was served, conclusive 
 evidence of the following facts and of no other : i. That the 
 charges in the account for money paid to creditors, legatees, 
 next of kin, and for necessary expenses, are correct. 2. That 
 the executor or administrator has been charged all the interest 
 for money received by him and embraced in his account, for 
 which he was legally accountable. 3. That the moneys stated 
 in such account as collected, were all that were collectable on 
 the debts stated in such account, at the time of the settlement 
 thereof. 4. That the allowance in the accounts for any de- 
 crease in the value of any assets and the charges therein, for 
 the increase of such value, was correctly made, (3 Rev. Stat, 
 181, § 71, 6th ed.) It is only in respect to the matters herein 
 enumerated that the accounting became conclusive evidence 
 by statute. As respects any other matters, this provision does 
 not operate to discharge the executor, but as to them, he is 
 open to any remedies that may exist against him. (Bank of 
 Poughkeepsie v. Hasbrouck, 2 Seld., 222.) 
 
 The petitioner insists that some of the items erroneously 
 allowed do not come within either of the four subdivisions 
 
39 
 
 above enumerated, and that consequently, she is entitled to 
 have a re-accounting as to them. But, if there be any such 
 items, the accounting is, as an accounting, as conclusive as to 
 them as it is in respect to items embraced within the Statutory 
 provision. An accounting in a Spiritual or Ecclesiastical 
 Court was little else than a preparatory proceeding to gain 
 some insight into the state of the fund, for, if brought by a 
 creditor, the Court had no power to decree the payment of his 
 debt, or if brought by a legatee or next of kin, though the 
 Court could entertain a suit for a legacy or for the distribution 
 of the resic^ue of an estate, yet as it had no means to ascertain 
 the amount of the debts, it could not afford an effectual 
 remedy. It was, in fact, as Lord Keeper l^orth called it, a 
 4ame jurisdiction, and consequently, the creditor had to sue at 
 law, or the legatee or next of kin to bring a suit in equity, and 
 neither at law nor in equity was any regard paid to the 
 accounting, if one had been had in the Spiritual Courts. The 
 Court of Chancer^^, on a bill filed for the payment of a legacy 
 or for distribution, would order an accounting, as if none had 
 taken place, (Bissell v. Axtell, 2 Yern.^ 47,) and at law, the 
 account as allowed by the ordinary, could not be given in 
 evidence, (Turvie's case, 2 Rolls. Ahn.j 678.) The accounting, 
 however, in the Spiritual Court was conclusive there, for if 
 after the investigation of the account the ordinary found it to 
 be true and pronounced for its validity, and all the parties in- 
 terested had been cited, the sentence was final, and the executor 
 or administrator could be called to no further account, 
 {Oughton^s Ordo Jiidiceonimj So4:-6 ] Swinhurne on Wills, 865, 
 Lond.'ed. ; 4: Burns'' s Ecclesiastical Laiu^ 9th Lond. ed., by Phili- 
 more, 605, 609 ; Eainer's case, 1 Deane^s Ecc. Rep.^ 317.) Our 
 Statute, however, has made the final settlement of the account, 
 and the allowance of it by the Surrogate, conclusive evidence 
 as to certain facts against creditors, legatees, next of kin, 
 and all other persons in any way interested upon whom the 
 
40 
 
 citation has been served, and of which the executor may avail 
 himself, whether prosecuted here or in a court of law or in 
 equity. As to other facts or items, it is conclusive here at 
 least, so far as the right exists to compel an account, though it 
 would be of no avail to the executor or administrator in another 
 forum. (Wentz v. Jenkins, 11 Barb.^ 548 ; Bank of Pough- 
 keepsie v, Hasbrouck, 2 Seld.^ 222.) Whether it would be here 
 or not on an application to compel distribution is a question 
 upon which it were better that I should express no opinion, as, 
 should it arise, it may be examined hereafter. 
 
 It is insisted next, that both as respects the items which are 
 embraced within this provision of the Statute, as well as those 
 which are not, the account is not conclusive against the 
 petitioner, inasmuch as she was a minor at the time when the 
 accounting was had, — and that though she may have been 
 present in Court, and have had a guardian ad litnn to look 
 after her interest, still that she is entitled either before or 
 after her majority to have a re-accounting, if she can show 
 that any item has been erroneously allowed, and that the 
 allowance of it is prejudicial to her interests. In Courts of 
 Equity the practice exists, where the effect of the decree is to 
 divest the infant of an interest in land, or where a conveyance 
 is required of an infant, and in cases of foreclosure, (Miller v. 
 Dennia, 3 Johns C, R, 867; Wright v. Miller, 4 Mel, 18; 
 DanieW CJiancery Practice^ 182, 183, 1st Am. ed.,) to give him a 
 day after he comes of age, to show cause why the decree 
 should not be binding upon him ; but in all other cases, as a 
 general rule, he is, where a guardian ad litem has been ap- 
 pointed to act for him, as much bound by the decree as an 
 adult. (Woodhara v. Moor, ToiUlVs R. 108, edition of 1619; 
 Wall V. Bushley, 1 Broiun's C, 484; Sheffield v. The Duch- 
 ess of Buckinghamshire, ^^^esfs i?., 684; lAtk.,QZl', Shield 
 V. Power, 29 Miss.^ 815 ; Alexander v. Trary, 9 Ind. i?., 174 ; 
 Creath v. Smith, 20 Miss. R, 118.) The rule in equity is, that 
 
41 
 
 the infant is bound by the acts of the guardian ad litem^ if lie 
 acts bona fide. {Daniels' Chancery Practice^ 182, 1st Am. ed.) 
 A decree confirming or avoiding a will where an infant is heir 
 or devisee, is conclusive upon him, unless the Court should 
 give him a day to show cause, which is now no longer given, 
 (Whitechurch?;. Whitechurch, 2 Eq. Ca. Ah., 303 ; Thornton v. 
 Blackburn, 2 Keh., 7; 1 Harrison's Ch. Prac, Ed. Newl, 367, 
 note ;) and in a Court of Equity the accounting which is had 
 preparatory to a decree, of foreclosure is equally so ; and the 
 infant, if a day has been given to him to show cause, is 
 limited to showing errors in the decree, (Mallock v. Golton, 3 
 P. Wms. R, 350 ; Bennett v. Hamill, 2 Sch. and Lef, 566.) 
 
 In the exercise of the ample powers with which Courts of 
 Equity are clothed, they have in certain cases, where injustice 
 has been done to the infant by a decree, afforded him relief, after 
 ^ke has come of age, by a re-hearing or by a bill of review ; but, 
 as I have already stated, no such procedure was known in the 
 Ecclesiastical Courts. In the State of Indiana, Probate Courts 
 are clothed by statute, with all the powers of a Court of Chan- 
 cery in the matters submitted to their cognizance, and a dis- 
 tinction is made between a proceeding which is for the benefit 
 of infants and one which is against them. In the former case 
 they are concluded by the acts of the guardian ad litem unless 
 he is shown to have acted in bad faith ; but in the latter they 
 may open the decree at any time within one year after they 
 arrive at mature age, by filing a petition for a review, {Act 
 organizing Probate Comets, Feb. 17, 183S ; Revised Statutes of 
 Indiana^ C. 24, p. 174 ;) and unless, as in this instance, such a 
 power ^ is given by statute, I know of no authority for its 
 exercise by Courts of this description. 
 
 In the earlier works upon the practice of the Ecclesiastical 
 Courts, some doubt appears to have been entertained as to 
 whether infants could be affected at all by the final accounting 
 of an Executor or Administrator. In Cockburn's Clerk's 
 
42 
 
 Assistant, (288, Dublin edition of 1753,) it is said, " minors 
 can not be prejudiced by it, but may call executors to account, 
 though it is the opinion of some that minors above seven 
 years may be called to constitute a proctor, and pray that 
 guardians or curators may be assigned them ; and if they do 
 not do so, all acts in pain of their contumacy will be valid. 
 And it is also held that the Judge, from his of&ce, may assign 
 minors under seven years of age guardians, and if he does, 
 that the acts done in their presence are good, but querey In 
 the Clerk's Instructor, however, a contemporary and far more 
 reliable work, the forms are given by which infants, in elect- 
 ing a guardian ad litem, bind themselves to allow as firm and 
 valid whatever the guardian might do or cause to be done in 
 the premises. {The Clerk^s Instructor, 184, ed. of 1740.) In 
 the subsequent works which I have consulted, no allusion is 
 made to the doubt expressed in Cockburn, nor is there any 
 reference to the subject, for accountings in these Courts, after 
 the Court of Chancery came to exercise a co-ordinate and more 
 effectual jurisdiction, became exceedingly rare. {See the Re- 
 marks of Sir John Nicholl, in Young v. Skilton, 3 Hagg. Fee. 
 R, 782.) Little weight, however, is to be given to the doubt 
 entertained by Cockburn, as the practice of the Court of Chan- 
 cery upon this subject was not settled or very clearly defined 
 at the time when his work was published. The opinion of Sir 
 Joseph Jekyl, in 1722, as to the cases in which the Court 
 would give an infant a day to show cause after he became of 
 age, was in direct conflict with that of Lord Hardwicke in 
 1737, (Eyre v. The Countess of Shaftesbury, 2 P. Wm. R, 103 ; 
 Sheffield v. The Duchess of Buckingham, West's i?.,^684,) and 
 perhaps the subject may be still open to some controversy, 
 but the more general rule in Courts of Equity is as I have 
 stated it. 
 
 Our statute has declared that the final accounting shall be 
 conclusive against creditors, legatees, next of kin, and all other 
 
43 
 
 persons interested, and I am in effect asked to add to these 
 words, " except in the case of infants." I do not feel at liberty 
 to do so. The Eevised Statutes contain numerous provisions 
 designed for the protection of infants, and if the Eevisors, or 
 the Legislature by whom the Revised Satutes were passed, had 
 intended that this final settlement should be of no effect as 
 respects infants, I think they would have said so. It is argued 
 that they made no provision for the citation or the representa- 
 tion of infants upon this accounting, and that the omission to 
 do so indicates that the accounting was not to be conclusive as 
 to them. There is, however, a general provision, where the 
 executor or administrator desires to have the account finally 
 settled, requiring the Surrogate to issue a citation to the cred- 
 itors, legatees, and next of kin to attend at the settlement. 
 (3 Revised jStal, 180, 5th ed.) This has always been under- 
 stood as including infants, and the practice has been uniform 
 in this Court, and, I apprehend, in every other Surrogate's 
 Court in the State, to cite them and appoint guardians ad litem 
 to watch over their interests. Provision is also made that an 
 executor or administrator may be compelled to account by a 
 person on behalf of any minor having a demand against the 
 personal estate, (3 jRev. Stat.^ 178, 8d ed.,) and it was not 
 necessary to provide in the article upon accounting for the 
 manner in which infants should be represented, as the Surro- 
 gate is — as has been" already shown — clothed with ample 
 power to appoint guardians ad litem to act in all cases on their 
 behalf. The provision declaring that the final accounting shall 
 be conclusive embraces the chief matters in respect to which 
 an executor or administrator is required to account ; and as 
 respects matters not embraced within its provisions, the pass- 
 age from Cockburn shows that in his time the opinion was 
 entertained that if the Court appointed a guardian to look 
 after the interests of infants, the acts done in his pre- 
 sence would be binding upon them ; and it appears to have 
 
44 
 
 been subsequently the established practice of these Courts to 
 appoint guardians in all cases where their interests might 
 be affected, and they were required in the citation to appear 
 by guardian, (Turner v. Felton, 2 Philim. Ecc. J?, 93; 4 
 Burns's Ecclesiastical Law^ 151, 9th London edition, by Phili- 
 more ; 1 Broiuiis Civil and Admiralty Law^ 454, Am. ed.) 
 
 If the final accounting is to have no effect upon the interests 
 of infants, then it would seem to be entirely unnecessary to 
 appoint guardians ad litem to look after their interests ; nor 
 could the distribution of assets, to which the accounting is pre- 
 liminary, be final, if an infant, though represented upon the 
 accounting, is at liberty at any time afterwards to have the 
 whole account re-adjusted. Matters would remain in the great- 
 est uncertainty, and infinite difficulties would be created, if this 
 settlement is liable to be opened in every case where an infant 
 was a party at the time of the adjustment. It is the duty of 
 Courts to see that the rights of infants or minors are protected, 
 and that duty is discharged in any suit or proceeding by ap- 
 pointing capable and disinterested persons to appear for them 
 and watch over their interests. If they do not act lona fide^ or 
 if there is any fraud or collusion, any deception or surprise 
 upon the Court, the infant is entitled to have the decree set 
 aside ; but to go beyond this, and hold that infants are not to 
 be affected by any proceeding, that they are to have the right 
 in all cases, at any time afterwards, to have ^he settlement 
 opened and re-adjusted, if they can show that any item has been 
 erroneously allowed, is in ray judgment to carry the duty of 
 protecting them to an unreasonable extent. If an executor 
 or administrator is never to have a final settlement of his ac- 
 counts, or be discharged from his trust as long as there is an 
 infant still in his minority — if he must wait, say for twenty 
 years or more, before he can hope to be finally discharged,* 
 then I apprehend that few would be willing to undertake the 
 administration of such a trust. As I have said, if any fraud or 
 
45 
 
 collusion has been practiced upon the accounting, relief should 
 undoubtedly be given, for it can not be that the Statute meant 
 that it should be conclusive in such a case ; but with that ex- 
 ception, if all the parties in interest have been duly cited, and 
 infants are represented in the mode established by law, the 
 accounting in my judgment is conclusive and final. 
 
 It only remains to determine whether fraud or collusion has 
 been shown, and after fully considering the evidence, I do not 
 feel that I would be justified in opening the account upon the 
 assumption that that has been established. The facts alleged 
 in the petitioner's affidavit, and which would mainly tend to 
 show it, are denied in the affidavit of the executors, and neither 
 the items alleged to have been erroneously allowed, nor the 
 other circumstances set forth in the petitioner's affidavit, are of 
 a character to warrant me in holding that fraud or collusion 
 was practiced upon the petitioner to get the accounts passed. 
 Still the case is not free of suspicion. The relation which 
 the Executor has held to the petitioner and to the estate is 
 a peculiar one. He was a clerk of the deceased, and was 
 appointed by the'testator his executor in connection with the 
 widow and another person. After the testator's death, he 
 married the widow, by whom he has had three children. He 
 alone, during the long period that has elapsed since the testa- 
 tor's death, has had the entire control and management of the 
 estate ; and the mother, for many years his wife, was during 
 this period the testamentary guardian of the testator's children, 
 the petitioner and her brothers and sisters living with her 
 mother and the executor as one family. Yery serious charges 
 against the Executor, in the management and discharge of his 
 trust, .are set forth in the petitioner's affidavit, and not denied 
 in the affidavit made by him ; he relying chiefly upon a general 
 ^objection to the want of jurisdiction in the Court to call him to 
 any further account, though his counsel, on the argument, gave 
 an oral explanation of the matters set up in the petitioner's 
 
46 
 
 affidavit, which would seem to be satisfactory. Where the 
 case is one of an infant placed under the circumstances in 
 which this petitioner was placed, and she insists that she was 
 deprived of her rights by fraud or collusion, the Court should 
 act with great caution, and afford her an ample opportunity if 
 it is in her power to establish it. It is more especially so in 
 the present case, as she has chiefly relied upon other grounds 
 to be relieved from the effect of the decree, and in which my 
 conclusions are against her. I shall have to decide against her 
 on this ground also, deeming the evidence before me insuffi- 
 cient to sustain it ; but I shall do so without prejudice to her 
 right to make a new application, if she can bring facts and cir- 
 cumstances to the knowledge of the Court which will satisfy 
 it that there has been fraud or collusion on the part of the 
 Executor in obtaining the accounting. 
 
I ]sr D E X 
 
 A 
 
 Aasdom, Law of, 9. 
 Accident, 31, 32. 
 Accounting, 9, 38. 
 
 Conclusiveness, of, 38, 39, 40, 41, 42, 43. 
 
 Practice, on, 39. 
 
 What it was in Ecclesiastical Courts, 39. 
 
 Conclusive there 39, though not in other Courts, 40. 
 
 Of no effect in Courts of Law or Equity except by statute, 39. 
 
 Conclusive evidence as to certain facts in all Courts by statutes, or against 
 
 creditors, legatees, next of kin and persons interested, on whom citation is 
 
 served, 38, 39, 40. 
 When it is conclusive upon infants, 40, 43, 44, 45. 
 
 Opened if infants have appeared by guardians, Avhere fraud or collusion has 
 been practised,'44. 
 Accounts, 17, 18, 19, 23, 2Y. 
 Administration of Estates, 18, 34. 
 
 Letters, of, 9, 16, 17, 21, 22, 23, 25, 26, 29, 31, 32 
 
 Records, of, 17, 22, 25, 26. 
 Administrator, 23. 
 
 Public, 24, 25. 
 Affidavit, 25, 26, of peittioner, 36, 45 
 Albany, City of, 21, 23. 
 Alexander v. Tracy, 40. 
 
 Amsterdam, New, City of, 9. Tice-Director of, id. Schout Fiscal,iid. Council of, id. 
 Andrews, Law of, Xew-York, 53. 
 
 Appeal, 9, 21, in Ecclesiastical Courts, 39, Practice, on, 35. 
 Appearance of Infants, Effect of, 36. 
 Appointment, Council of, 22. 
 
 Archbishop of Canterbury, probate jurisdiction of, 12, 14, 15, 16, 30. Ordinary or 
 
 Delegate, of, 15. 
 Assets, 18. 
 
 Assembly, Colonial, of Xew-York, 11, 13. 
 Assize Court of, 10. 
 Auditor, IS. 
 
 Ayliffe's Pareregon, 13, 30, 32. 
 
48 
 
 B 
 
 Bank of Pouglikeepsie v. Hasbrouck, 88, 40. 
 
 Banta v. Calhoun, SY. ' 
 
 Banyan Goldsbrow, 20. 
 
 Bayos Practice, 32. 
 
 Bennett v. Harrison, 39. ' 
 
 Bequests, 23, 26. 
 
 Bissell V. Axtell, 39. 
 
 Bishop of London, probate jurisdiction of, 12, 14, 16, 30. Commissary of, IG. 
 
 Bloom V. Burdick, 31. 
 
 Blaekstone's Commentaries, 29, 30, 37. 
 
 Bohun's Customs of London, 30. 
 
 Books, 19. 
 
 Bridges, Dr., 14, 15. 
 
 Bradford, Hon. Alexander W., 2, 36. 
 
 Brick, Joseph W., estate of, 2. 
 
 Brown's Civil and Admiralty Law, 22, 34, 35, 44. 
 
 Burgomasters and Schepens, Court of, 9. 
 
 Records of, 10. 
 Burgoyne vs. Free, 35. 
 Burns's Ecclesiastical Law, 32., 34, 39, 44. 
 Business, unfinished of Surrogates. 
 
 c 
 
 Canterbury, probate jurisdiction of Archbishop of, 12, 15, 16. 
 Cargill V. Harrison, 31. 
 Canon Law, 23, 27, 30, 34. 
 Cargil V. Spence, 33. 
 Caveat, 34. 
 
 Chancery, Court of, 19, 24, 25, 29, 34, 35, 41, 42. 
 
 Practice of, in appointing guardians, 42. 
 Chancellor, 24. 
 
 Citation of Infants and Parties, 36, 39, 41, 43, 44. 
 Clark, Secretary of Province of New- York, 20. 
 . Clark V. Gilmartin, 37. 
 
 Clarkson, Secretary of Province of Xew-York, 14. 
 
 Clow's Commission, 27, 28. 
 
 Clerk's Instructor, 32, 42. 
 
 Cockburn's Clerk's Assistant, 32, 35, 41. 
 
 Coke, Littleton, 37. Institutes, 30. 
 
 Collusion, 30, 44, 45, 46. 
 
 Colonial Secretary, 11, 13, 14, 15, 16, 17, 20, 21. 
 
 Documents of New- York, 9, 17, 20. 
 
 Governor, 10, 21. 
 Commissary, 15, 16, 18, 30. 
 Commissions, 15, 17, 18. 
 Commissioners, 37; of Deeds, 18. 
 Commissions, Book of, 7, 15, 17, 21. 
 
49 
 
 Common Council of New-York, Records of, 10. 
 
 Common Law, 19, 27, 29. Courts of, 34, 25. 
 
 Common Pleas, Court of, 14, 17, 18, 25. 
 
 Conclusive, when decree is, 32, accounting is when, 42. 
 
 Conclusion, rescinding, what it is, 32, ?3. 
 
 Constructive authority, 7, 28. 
 
 Contempts, 29. 
 
 Conveyances, 26, 29, 40. 
 
 Conklin v. Hill, 38. 
 
 Constet's Practice, 32, 34, 36, 37. 
 
 Corwin v. Merritt, 30, 31. 
 
 Cornbury, Lord, 14, 15. 
 
 County, 23. 
 
 Council of Revision, 10, 19. 
 Counsel, 2, 32, 34. 
 
 Courts, Special and General, 37. Ecclesiastical and Spiritual, 7, 23, 29, 30, 32, 35^ 
 37, 39, 41. Diocesan, 30. Peculiars, id. Royal Peculiars, id. Of Hust- 
 ings, id. Orphans, id. Manorial, id. Of Orphan Masters, 10. Of Record, 18, 
 30. Of Appeals, 31. Of Chancery, 19, 24, 25, 29, 34, 35, 41, 42. Su- 
 preme Court, 18, 25, 29. Common Pleas, 14, 17, 18, 25. Of Equity, 40, 
 41, 42. Burgomaster and Schepens, 9, 10. Mayors, 10, 11, 13. Pre- 
 rogative, 13, 14, 15, 16, 17, 18, 19, 20, 21, 25. Probates, 21, 22, 23, 24, 
 25. Probate of Indiana, 41. Sessions, 11. 13. Assize, 10. Surrogates 
 6, 7, 23, 26, 33. 
 
 Creath v. Smith, 40. 
 
 Creditor, 36, 42. 
 
 Crown, 14. ♦ 
 
 Cummings, Alexander and Green, 2. 
 
 Curator, 9. 
 
 D 
 
 Dakin v. Hudson, 24, SO, 
 Daly, Hon. Charles P., 2. 
 
 Daly's Judicial Tribunals of Xew-Tork, 9, ;0, 20. 
 
 Daniel's Chancery Practice, 40. 
 
 Dawson Ex parte, 36. 
 
 t)ay, to Infant, to show cause, 41. 
 
 Debts, 18, 23, 24, 26, 39. 
 
 Decree, 23, 25, 26, 30, 31, 32, 34, 35, 39, 40, 41 
 Default, 31, 32. 
 
 Deputy Secretary, 14, 15, 16, 17, 20. 
 
 Delegate, Governors, 15, 17. Local, 17, IS, 20. 
 
 Diocesan, Court of, 1 5, 30. 
 
 Distribution, 16, 23, 24, 25, 26, 31, 39, 4<\ 
 
 Documents, 19, 24, 26, 27. 
 
 [Doran v. Dempsey, 30. * 
 
 Donnellan v. Donnellan, 33. 
 
 Dower, 24, 26. 
 
 Duke's Laws, 10, 12. 
 
 I 4 
 
E 
 
 Eagleston v. Kingston, 35. 
 
 Ecclesiastical Jurisdiction, 12, 17, 23, 25, 35, 41, Courts, see Courts. 
 
 England, 7, 18, 29. 
 
 Equity, Courts of, 19, 40, 41, 42. 
 
 Errors, Court of, 19. 
 
 Estate, 10, 17, 23, 27, 45. 
 
 Evidence, 32, 35. New, 35. 
 
 Examiner, 20. 
 
 Executor and Administrator, 9, 16,' 17, 18, 19, 23, 24, 26, 27, 28, 43, 44, 45, 40. 
 Execution, 19, 24, 26. 
 Expenses, 23, 26. 
 
 Eyre v. Countess of Shaftesbury, 42. 
 
 F 
 
 Farrell v. Smith, 31. 
 
 Ferrie v. Public Administrator, 35. 
 
 Fletcher, Colonial Governor, 14. 
 
 Foot V. Stevens, 38. 
 
 Foreclosure, 40, 41. 
 
 Fraud, 30, 31, 44, 45. 
 
 Fund, 39. 
 
 G- 
 
 Gibson's Codex, 13, 16, 23, 30, 32, 34. 
 Governors, Colonial, 7, 13, 14, 17, 18. 
 Governor General, 10, 24, 25, 26, 36, 37. 
 Government, State, 27, 28. 
 Godolphin's Orphan's Legacy, 32, 34. 
 Granson v. Dorn, 31. 
 Greenleaf 's Laws, 23. 
 
 Guardian, Testamentary, 5, 18, 36, 45. Effect on, of Marriage of Ward, 0. General, 
 
 31, 36, 37, 42. Ad Litem, 36, 37, 38, 40, 41, 42. 
 Guardianship, Letters of, 29, 32. 
 
 H 
 
 Ilammerton v. Hammerton, 82, 85. 
 
 Hardwicke, Lord, 6, 42. 
 
 Heirs, 24, 26. 
 
 Henley v. Doddridge, 35. 
 
 Hoffman, Hon. Murray, 2. 
 
 I 
 
 Identity, 33. 
 
 Indiana Probate Court, 43. 
 
 Infants, 5, 6, 24, 31, 36, 37, 40, 41, 42, 43, 44, 4a, 46. Consent of, 37. Bound by 
 
 decree when, 40. 
 Incidental Powers, 7, 27, 28, 37. 
 Ingram v. Wyeth, 32. 
 
51 
 
 Instruments, 26. 
 
 Intestates, H, 18, 22, 23, 2-i, 25, 26, 27. 
 Items in Accounts, 38, 40, 44. 
 Inventories, 17, 21, 22, 27. 
 
 J 
 
 Jack V. Davis, 37. 
 
 James, Duke of York. 
 
 James, A. B., Judge. 
 
 Jekyl, Sir Joseph, 42. 
 
 Jephsont'. Reirs, 35. 
 
 Ingoldsby, Lieut.-Governor, 13, 15. 
 
 Jongsmay. Pfiel, 37. 
 
 Jurisdiction, 6, 16, 17, 25, 28, 42, 45. Of Surrogates, 7, 8, 9. 
 
 K 
 
 Kellett V. Rathbone, 36. 
 Kellinger v. Roe, 37. 
 Kent's Commentaries, 37. 
 Kin, next of, 18, 29, 39, 43. 
 Kings County, 14. 
 
 Ivnickerbocker v. De Freest, 37, 38. 
 
 L 
 
 Lacbaire, his New- Amsterdam ^^tarial Register, 10. 
 
 Lands, 23, 24. 
 
 Laton V. Laton, 30. 
 
 Legacy, 18, 23, 25, 26, 39. 
 
 Legatee, 31, 39, 43. f 
 
 Leasing, 24, 26. 
 
 London, Bishop of, 12. 
 
 Lords of Trade, 14, 20. 
 
 M 
 
 Manorial Courts, 30. 
 
 Mackey v. Gray, 37. 
 
 Marriage Licenses, 17. Records of, 17. 
 
 Mason v. Denniston, 37. 
 
 Mallock V. Golton, 41. 
 
 Mayor's Court, 10, 11, 13. 
 
 Metropolitan, 16. 
 
 Middleton v. Middleton, 33. 
 
 Miller v. Denis, 40. 
 
 Miller, Sylvanus, 19. 
 
 Minutes, 19. 
 
 Mirrors, 37, 40, 41, 44. 
 
 Mistakes, 19, 31, 32. 
 
 Moore, Colonial Governor, 20. 
 
 Monk V. Butler, 38. 
 
 Mortgaging, 24, 26. 
 
52 
 
 N 
 
 Xapier in re, 31. 
 New-Amsterdam, Custom of, t>. 
 New Evidence, 35. 
 
 New- York, Colony of, 21. City of, 21. 
 New Trial, 34, 36. 
 Next of kin, 39. 
 Nieholl, Sir John. 
 North, Lord Keeper. 
 
 o 
 
 Oath, 18. 28. 
 
 O'Brien v. O'Connor, 34. 
 
 O'CalLa^han, E. D., History of New-Amsterdam, 9'. 
 
 Translation of Vertoogh, 9. 
 Offices. 20. 
 
 O'Gorman, Richard, Esq. 
 Orange County, 14. 
 Ordmary, 14, 15, 89. 
 Oi'dcrs, 25, 26, 31. 
 
 Orphans, 9. 18, 30. Court of, 30. Court of Orphan Masters, 10. 
 Oughton's Ordo Judiceorum, 34, 39. 
 
 P 
 
 Faff i'. Kenney, 29. 
 
 Papers, 19. 
 
 Peck Holstead, 37. 
 
 Peculiars, Court of, 30. 
 
 People V. Corlies, 30. 
 
 PcAV V. Hastings, 31. 
 
 Personal Estate, 23, 24,. 26, 27. 
 
 Petition for review, 45. Statements of, 36. 
 
 Petitioner, 4, 5, 36, 45, 46. 
 
 Powers incidental, 7, 27. Of Surrogates, 7, 26, 27, 32, 37. 
 Powell V. Millbank, 38. 
 
 Practice, 32, 38. Of Ecclesiastical Courts, 32, 33, 34, 35. 
 
 Procedure, course of, in Ecclesiastical Courts, 34. 
 
 Proceeding, 31. 
 
 Proctors, 2, 42. 
 
 Proctor V. "Wanmaker, 31. 
 
 Probate, 4, 17, 22, 23, 26, 29, 32, 34, 35, 41. 
 
 Courts of, 41. Indiana Court of, 41. 
 Probates, Court of, 19, 20, 21, 22, 23, 24, 25. 
 
 Clerk of, 21. 
 Pi-crogative, 21. Office of, 14. Seal of, 17, 19. 
 
 Court of, 16, 17, 18, 20, 25 ; Courts of the, in England, Sc; 
 Predecesj^or, 24,-27. 
 
 Publication, what is in Ecclesiastical Courts, S3. 
 
^3 
 
 R 
 
 Rainor s Case, 30. 
 Real Estate, 2(\ 87. 
 Reiiccouuting, 38, 40. 
 Recoi'ds, 10. 
 
 Resciuding conclusion, what it is in Eeclesiastic^il Courts, 32 
 Registrar, 14. 
 Registry, 16, 10. 
 Rehearing, 29, 34, 41. 
 Revisors, 7. 
 
 Review, 35. Bill of, 34, 41. 
 
 Revolution, American, 19, 2i>, 25. 
 
 Revised Statutes, 6, T, 8, 9, 25, 20, 27, 28, 29, 30, 43. 
 
 Rex i\ Hawkins, 38. 
 
 Richmond County, 14. 
 
 Rochefort v. Xugent, 35. 
 
 Royal Peculiars, Courts of, 30. 
 
 s 
 
 Sale of Lauds, 24, 25, 26. 
 Schepens, 10. 
 Schout Fiscal, 9. 
 Schoolmasters, 17. 
 Scale V. Price, 32. 
 
 Secretary, Colonial, 13, 14, 15, 10, 17, 20. Office af, 14. Deputy, 14, 15, l-'. 17. 20. 
 
 Sentence, 32, 33, 34, 39. 
 
 Service of Citation, 30. 
 
 Sessions, Courts of, 11, 13, 
 
 Settlement, 44. 'f 
 
 Seymour v. Seymour, 24. 
 
 Shannessy v. Allen, 31. 
 
 Sheffield v. Duke of Buckinghamshire, 40, 42, 
 
 Shield v. Power, 40. 
 
 Sipperly v. Baucos, 8, 31. 
 
 Skidmore v. Davis, 31. 
 
 Smith r. Palmer, 37. 
 
 Sparrow v. Norfolk, 23, 
 
 Stone V. Atwell, 37. 
 
 Stoutenbergh, John A., Esq., 2. 
 
 State Govei'nment, 27, 28. 
 
 Supreme Court, 18, 25, 29, 35. 
 
 Sloughter, Governor, 12. 
 
 Surrogates, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 85, 36, 38, 43. CourtL^ 
 
 of, 7, 23, 28, 29, 35. Powers of, 7, 26, 27, 29. 
 Swearing witnesses, 28. 
 Swinburne on Wills, 39. 
 
 T 
 
 Taylor v. Shaw, 31. 
 Testamentary Letters, 25, 26. 
 
54 
 
 Testators, 24, 26. 
 Thornton v. Blackbume, 41. 
 Tollers' Law of Executors, 30, 35. 
 Tomlin's Law Dictionary, 29. 
 Trade, Lords of, 14, 20. 
 Trimbleton v. Trimbleton, 31, 34. 
 Trial, new, 34, 35. 
 Tryon, Governor, 20. 
 Turner v. Felton, 36, 44. 
 Turvies' Case, 39. 
 
 V 
 
 Van Cott, Gabriel, Esq., 2, 36. 
 Van Veen, Notarial Register of, 10. 
 Vertoogh of New-Xetherlands, 9. 
 Vredenbergli v. Calf, 31. 
 
 w 
 
 Wall V. Bushley, 40. 
 
 AVatkins v. Bligli, 8, 32. 
 
 Webb V. Webb, 33. 
 
 Wentz V. Jenkins, 40. 
 
 Went worth, office of Executor, 30. 
 
 Westchester County, 14.. 
 
 Williams v^. George, 35. 
 
 Williams on Executors, 13, 30, 31. 
 
 Willard on Executors, 38. 
 
 Widows, 18, 24, 26. 
 
 Webster, law of, 24. 
 
 Whitecliurch v. Whitechurch, 41. 
 
 Wills, 11, 17, 22, 23, 24, 25, 26, 27, 29, 32. 
 
 Execution of, 35. Records of, in New-York Surrogate's Office, 10, 12, 13, 
 14, 15, 17, 22, 26, 41. 
 Witnesses, 16, 24, 27. 
 Woodham v. Moor, 40. 
 Woodruff, Hon. Lewis B. 
 Wriglit V. Jenkins, 40. 
 Writings, 24, 26, 27, 
 
 Y 
 
 York, Duke of, 10. 
 Young V. Kelly, 34. 
 Young r. Skelton, 42. 
 
\ 
 
 ii 
 
i