Argued January 22, 1883
Decided January 30, 1883
Amos G. Hull for appellants Allen et al. Rufus L. Scott and William H. Taggard for A. Stewart Walsh et al., appellants. Walter H. Shupe for respondents.
John Hancock died on the 12th of September, 1874, leaving a will and three codicils, in which he named John Swenerton, John W. Hutton and John Bell Locke, executors. In the same month the will was presented for probate by John Swenerton to A. Edward Suffern, the then surrogate of Rockland county, and the usual citation issued, returnable on the 16th of November, 1874. At the return day allegations were made by various parties against the validity of the will and codicils. On the 26th day of December, 1874, Walsh, one of the next of kin of the testator, presented his petition to the surrogate for special letters of administration, authorizing the preservation and collection of the goods of the deceased, whereupon on the 18th of January, 1875, it was stipulated in writing by the proponents and contestants, and their counsel, and Walsh, his attorney, "that the personal estate and all effects, properties, choses in action, and demands thereunto belonging be paid and delivered into court to abide the further order and disposition of the court" thereupon. This stipulation was filed, and an order was to that effect duly entered. The surrogate took possession of the property. Litigation over the probate of the will continued with such success that on the 10th day of November, 1879, he admitted the will to probate, and issued letters testamentary to Messrs. Locke, Allen and Walsh, the executors named therein. He denied probate to the first codicil as not well executed, and to the second and third as having been induced by fraud. No appeal was taken from the decree admitting the will to probate, but John Swenerton and John W. Hutton appealed to the Supreme Court from so much of the decree as rejected the three codicils, and on the 13th of September, 1880, the General Term of the second department reversed the decree as to the first codicil, and affirmed it as to the second and third. An appeal was then taken to this court from so much of the judgment of the Supreme Court as affirmed the surrogate's decree, and on the 1st of March, 1881, it was affirmed, and the remittitur duly filed on the 12th of March, 1881.
After this, but when does not appear, Surrogate Suffern died and was succeeded by Surrogate Cole. On or about August 24, 1881, Hutton presented to him a petition to have the decree of November 10, 1879, vacated, and a new trial granted, and on the 28th of December, 1881, the application was granted and the decree was declared null and void. The precise ground of the application and the order was that the surrogate by whom the decree was pronounced did, on the 25th or 26th of January, 1875, convert certain assets embraced in the stipulation and order of January 18, 1875, into money, and "neither paid the same into court, nor to the estate, nor to any one for the benefit of the estate," and so became interested in the estate to that amount, and remained so from that date. This fact has not been established by any legal proceeding, nor by legal evidence. As to it, the surrogate in his life-time was not heard, nor since his death, have his representatives been heard, but from the moment he received the property under the stipulation, he became liable to account for it, and he then acquired an interest of the same kind as that now charged upon him. The evidence of conversion, therefore, need not be criticised. Was the interest with which he was invested, assuming the allegations to be true, a disqualifying one? First. It is clear he acquired no interest in the estate, nor in the subject-matter of the question upon which he adjudicated.
Second. If the will went to probate, he was liable to account to the executors and persons interested, under the will; if it was denied probate, he must account to the personal representatives of the deceased.
Third. He was placed in this position by the wish and consent, among others, of the party who now complains, but who acquiesced in the probate of the will, and procured from the Supreme Court a judgment in favor of the codicil, and who, as party to the stipulation, was cognizant of the trust reposed in the surrogate, if not of the conduct concerning which he now complains.
Judicial proceedings would be rendered insecure and perverted into snares for litigants, if a party so situated could successfully impeach a decision which he promoted at a time when he was not ignorant of the cause of invalidity which he now sets up. Of necessity sometimes, and by force of the statutes in many cases, the surrogate receives funds belonging to estates concerning which he acts as custodian, and as to which he is at all times liable to account, and it would be a singular result if that liability should deprive him of jurisdiction in controversies properly before him. It may involve him in difficulty, and as the funds on hand at the death of Surrogate Suffern passed by law into the custody of his successor, it is difficult to see upon what principle he could exercise jurisdiction to vacate the decree of his predecessor, for a cause which also existed as to himself.
To what length shall the rule of disqualification be carried? The present surrogate, as appears by the papers, has paid over to the executors of John Hancock, upon letters issued by Surrogate Suffern, certain money and assets assumed to belong to that estate. Did he pay over the whole, or did he pay over some which belonged to Suffern personally, or to other estates? Can the executors of Hancock be required to account before him, or has he lost jurisdiction either to entertain such proceedings, or proceedings by the estate of Suffern, or in behalf of other estates, whose funds may be alleged to have mingled with those received by Suffern from the Hancock estate? Disbrow v. Mills ( 62 N.Y. 604) shows that such perplexities may arise, but it does not appear that loss of jurisdiction is to follow. It is no doubt a rule of the common law that no man can be a judge in his own cause, and this also has been declared by statute, but the interest must be that of party to the matter, or of such a nature as would involve direct pecuniary gain or loss. Here it was neither, nor was it even contingent or possible.
I have examined many of the various cases cited by the respondent, and all which from the citation seemed likely to support his views, but discover none which give color to the contention upon which the judgment appealed from rests.
The decree of the surrogate vacating the decree made by Surrogate Suffern, November 10, 1879, and the judgment of the General Term thereon, should, therefore, be reversed, with costs to be paid by the respondent personally.