New-York tribune., 1876-07-12

npss nf ~" : rote'. court was essential 20 adj
mjn,tritta o. Justice, and Necessary incident to 'e
crcl.ive iuri,d OF the Surrogate over all matters
nf the probate wills In Pew Rgt. Hastings, IIb,
Ghr a. me Chancellor Eciu tAat tho surrogate had
;nc newer 10 open decree taken ~ default,
and in consequence 81 bustaNe or accinrht.
In Prrr,or against Wauu1k.r. ! BARB, Chy., 3O2, IL Il
held that te Surrogate has power 10 r:yOfc letters OF
administration which have Dceh licsui%J anu Iin IOl'
crly obtained upon false anggcsoOE oi matter oI IA 4
without due notice 30 the party sntiuy entitled 10 All
minstratiyu independently oi the statute oi 1857 IN
DoOec against MCLarcn, Al 5aro 49, u was hc!d th
tgc Icrs.a ute by rceng tne provisions of the he
yscJ Statutes prOiHtilg the exercise OI any lnisdc-
imirn,d thu IN, Surrogate should have Incidental
powcr 10 open OF decree made through maud or
In sfcriy as Banctis "a \ s. 4G it held that
the effect OF tbs repeal by te az Oi l91 cha 1vo "a
H. GDoge Cited 81 tEc rotll'l'o Ci'I, m 20 NV
jnrisdicons OF SurrOgatcs courts, Revised statutes,
22l See i, Is 10 icSiorc TO snch courts 1ne 'cGcntli
powers possessed ~ mem PItS0!f 10 t.c h'Is,'
Statutes citing the suthorties which are above referred
TO- s1idman ag Davies 10 Paige 3ld it Was held lhat
Temedy OF isiy ds2ilcV'l d! an iie1la On P"l,o
order made by Surrogate j. To apply 10 tho surrogate
TO set aside the 0!dei ahd not Dy an appeal 10
The authority above cited in the K.llum will. 80 Bar
hour docs hot sustain ibe principle urged by counsel Ter
the executors ana eS eiti4A. Ltc - no .l ~
tho docl ions thai tho Su1aic has moi inc power 10
open decree OF proJ.te C VIII u real esiite lbe
learned iuge IN that holds tina; the elect O pro
bate OF viii porsonal property ana oi real estate
differs: real II H nOj cOIcuslNc cithef ~, D
the yalty or due execution Of the viii; but as TO the
probate OF viii OF personal properly, IL IL conclusive
anti be reversed IN anyeal or cVO.cd by tho
surrogate IN tho provided by ihe siatate or The
wifi DC declared Noid ~ c"ihpetvDt ulp"hi. ,ho i
atuIe provides for The making Of uucSdiiGES Nih ohc
wear wl lc there provision o! tbat kd fCsp cung
will Of real estate. but there II no iBtlndtio III Tue
opinion OF TINT cO,iFI, the surrogate has sot ic
mower as an uci.u 10 his oIlce, 10 Opcn vdedtc, 0f
modify will OF either KIND ~
Thc authorities above considered leave no reasonable
doubt m NY mind that ts court has the po"ci, ~
proper case, set aslde, Ocn yacae, on i."dy lhe
ogGer admitting VII ol real estate To p.o".se
But n any DOUBT existed prior 10 tie act or 1870,
Charter JJ to be fuily removed ny the Ian
gage OF c lst section Oi iha act, mad diciDic 10
ILe SurrOgite's OF the Clty OF ac@-loih, inc
latter clause Of which reads as fuilOWs: Abd
the said Surrogate shall have the same power 10
s,t ase Opcn Ntcatc modify orders or oecrecs % tbe
said court by cOurss Ol l"cord oi gciuf
Jurisdiction" Ihc and scope Oi TINS power are
certainly very ample; that courts OF general Jurisdiction
have power asG, open, yacGtc, "r hOdy Inc Or
drrs or DEGREES yrcsu posed b. the section ~ question:
and II is power wE.cH is guciaily ciord Iof 'ne
purpose correcting MISTAKES ANA FhrNihs d-diiSt
i.ugi, DC And uadcIS.and the lower coaieifsl "
the section last H. bo eiGa To iLaI rNtriscd W Il
court of oquy Dii fod ior bo purpose "i obIaihns
relief against JadsIae:t or Iecr,e lor mana OF ms
TIE PETITION NOT MATTTR or ABSOLUTE EiGHl.
Having reached conclusion thai have tho power to
cu;erta the pcnon this matter. II becomes neces-
sary to determine whether tie ,'ctiionor NAV nvoha
that power legal agni OF whether ne addresses iii-