A grant of letters of administration by a court having sole and
exclusive power of granting them, and which by statute is obliged
to grant them "to the relatives of the deceased, who would be
entitled to succeed to his personal estate," is conclusive in other
courts on a question of legitimacy, the grant having been made on
an issue raised on the question of legitimacy alone, and there
having been no question of minority, bad habits, alienage, or other
disqualification simply personal.
accordingly, after a grant under such
circumstances, that the legitimacy could not be gone into by the
complainants on a bill for distribution by the persons who had
opposed the grant of letters, against the person to whom they had
been granted, but on the contrary that the complainants were
estopped on that subject.
The Revised Statutes of New York, on the subject of granting
letters of administration, thus enact:
"The surrogate of each county shall have sole and exclusive
power within the county for which he may be appointed to grant
letters of administration of the goods &c., of persons dying
intestate -- when an intestate at or immediately previous to his
death was an inhabitant of the county of such surrogate. [Footnote 1
Page 80 U. S. 466
"Administration, in case of intestacy, shall be granted to the
relatives of the deceased, who would be entitled to succeed to his
personal estate. [Footnote
By the further terms of the statute, the surplus of an
intestate's personal estate remaining after payment of debts shall
be distributed, if there be no husband or wife, equally to and
among the children and such as legally represent them, or if there
be no children and no representatives of a child, then the
of kin in equal degree to the deceased &c.
To secure a competent person, a large discretion is entrusted to
the surrogate. He may exclude minors, aliens, intemperate persons
With these provisions of the code in force, Jeanne Du Lux, a
woman of French extraction, died November 15, 1854, at an advanced
age in the City of New York, intestate, leaving a large personal
estate, to be administered and distributed according to the laws of
the place of her domicile.
Within a month of her decease, John Pierre Ferrie applied to the
Surrogate of the County of New York for letters of administration
on her estate, claiming them on the ground that he was her only
child, and therefore her sole heir at law and next of kin. This
application was opposed by the public administrator, an officer
who, in the City of New York, is entitled to administer upon the
estate of deceased persons where there are no next of kin, and the
French consul was allowed to contest for the benefit of any party
in interest in France. During the pendency of these proceedings,
Benoit Julien Caujolle, Bert Barthelemy Caujolle, and Mauretta
Elie, with their respective wives, appeared before the surrogate
and asked to be heard, alleging that they were the next of kin, and
for that reason, entitled to intervene in the matter of the
administration, and "to share upon the distribution of the estate,"
and asking to receive their distributive share of the same. The
prayer of their petition was granted, and after this was done, the
French consul withdrew
Page 80 U. S. 467
from the contest. The only question involved in the application
for administration was whether Ferrie was the legitimate child of
Jeanne Du Lux, and all the proofs taken and admitted related to
that issue alone. As Ferrie was conceded to have been born in
France, a commission was issued to take testimony in that country
regarding the real relationship he bore to the said Jeanne Du Lux.
This commission was executed and returned to the surrogate, with a
large mass of oral evidence on the subject, together with documents
and extracts from public records.
The case came to a hearing on the 15th day of September, 1856,
on the proofs taken in France and at home, and the surrogate
rendered the following decree:
"In the matter of the Estate of Jeanne Du Lux,
"Upon taking proof of all the parties, who have appeared in this
matter, and after hearing counsel in behalf of John Pierre Ferrie,
claiming to be the son of the intestate, and counsel in behalf of
the public administrator, in opposition thereto, and counsel in
behalf of Benoit Julien Caujolle, Bert Barthelemy Caujolle, and
Mauretta Elie, and their respective wives, claiming as next of kin
of said intestate, it is ordered, adjudged, and decreed that
letters of administration upon the estate of said Jeanne Du Lux be
granted, and issue to the said John P. Ferrie, as the legitimate
son and sole next of kin of the said intestate, or to said Ferrie,
and such person as may be joined with him under the statute, on
giving the proper security required by law."
An appeal was taken from this decree to the supreme court of the
state by Benoit Julien Caujolle, acting for himself and the other
persons in France, and the decree was affirmed. While the case was
pending in the supreme court, on application of the appellant
there, additional evidence was received, not heard by the
surrogate, tending to show the illegitimacy of Ferrie.
Notwithstanding this additional evidence, the decision of the
surrogate was affirmed, and it was reaffirmed on a subsequent
appeal to the Court of Appeals. It was on this final decision in
his favor that administration of his mother's estate was granted to
Page 80 U. S. 468
In a short time after the decision against them in the highest
court of the State of New York, the persons already named living in
France who asserted themselves to be the next of kin of Jeanne Du
Lux filed their bill against Ferrie and the person who had been
joined with him under the statute in the court below for
To this bill the defendants pleaded in bar the decision of the
state courts on the contest for administration, as an adjudication
between the same parties of the very point in issue, by a tribunal
having jurisdiction of the subject matter. This plea was overruled,
and the cause, after answer, replication, and the taking of proofs,
was heard on its merits, and the legitimacy of Ferrie again
established. Appeal was taken to this Court by the other side from
this decision. The record brought up the whole evidence on the
question of legitimacy -- parol and documentary, French and
Page 80 U. S. 469
MR. JUSTICE DAVIS delivered the opinion of the Court.
If the learned judge of the court below erred in not sustaining
the plea in bar, we are relieved of the necessity of looking into
the evidence in order to see whether the cause was rightly decided
on its merits. The inquiry arises then, in the first place, whether
he did so err or not.
There must be an end of every controversy, and the question
raised by the plea is whether the litigation concerning the
legitimacy of Ferrie in the state tribunals of New York has been of
such a character that it cannot be renewed between the same parties
in the federal courts.
Chief Justice De Grey, in The Duchess of Kingston's
] has, in
a few words, given a comprehensive summary of the law on this
subject: "From the variety of cases in respect to judgments being
given in evidence," said the chief justice,
"these two distinctions seem to follow as being generally true:
first, that the judgment of a court of concurrent
upon the point is, as a plea, a bar,
or, as evidence, conclusive between the same parties on the same
matter directly in question in another court; secondly, that the
judgment of a court of exclusive jurisdiction directly upon the
point is, in like manner, conclusive upon the same matter between
the same parties coming incidentally in question in another court
for a different purpose. But neither the judgment of a concurrent
or exclusive jurisdiction is evidence of any matter incidentally
cognizable, nor of any matter to be inferred by argument from the
Did the fact of legitimacy come before the surrogate's
Page 80 U. S. 470
court, directly or incidentally, and was it necessary to decide
the point before the letters of administration could issue? are the
questions to be considered and determined.
In cases of intestacy in New York, the surrogate has the sole
and exclusive power of granting letters of administration, and is
obliged to grant them -- no question being made as to personal
competency -- to the relatives of the deceased who would be
entitled to succeed to his or her personal estate, and if Ferrie
were the only child of the intestate, he had the legal right to
administer, because he succeeded to the whole of her estate.
] It is true a large
discretion is given to the surrogate to secure a competent person,
and if relatives are disqualified for certain causes mentioned in
the statute, or are unwilling to accept, administration may be
granted to others, and in such a case the basis of action concludes
nothing as to the right of succession. But if there be next of kin,
and no personal disqualifications attach to them, the surrogate can
exercise no discretion on the subject. The inquiry becomes then a
matter or right, and is, by the express language of the statute, to
be determined by the right to the succession. [Footnote 6
In this state of the law on the subject, Ferrie applied for
letters of administration on the estate of Jeanne Du Lux, claiming
to be her son and therefore her nearest of kin. But these
appellants said you cannot have these letters, because you are
illegitimate, and we, as the descendants of a deceased aunt of the
intestate, are her nearest relatives, and therefore entitled to the
succession. The purpose was to get at the estate, and so they say
in their petition addressed to the surrogate for leave to
intervene. They allege themselves to be "the nearest of kin" and
"entitled to share upon the distribution of the estate," and ask to
be heard "and to receive their distributive share of the estate."
Manifestly they sought the contest because they supposed the right
to administer involved the right to the property. Their opposition
was not based on the ground of Ferrie's personal unfitness,
Page 80 U. S. 471
nor did they wish to administer themselves. How, then, can it be
said that the administration in this case was granted without any
reference to or consideration of the question of distribution? In
the absence of personal disqualifications, as we have seen, it is
compulsory on the surrogate to grant the letters to the party to
whom the inheritance belongs. This is the primary and only object
of inquiry in order to ascertain to whom the letters should be
issued. The illegitimacy of Ferrie in any other view was an
immaterial issue. It is personal good conduct, and not the status
of birth, which constitutes a man a fit person to be entrusted with
the duties of administration. It is idle therefore to suppose that
this contest was inaugurated and carried on on any other theory
than that the result of it settled the right to the estate. Because
an administrator can, under certain circumstances, be appointed who
is not connected by kinship with the intestate proves nothing. It
is enough to say there was no occasion for the surrogate to do
this, and his action was not grounded on his ability to do it in
certain contingencies. His power was invoked under that clause of
the statute which directed him to issue letters, in case there were
relatives, to the one to whom the estate went by the law of
descents. Ferrie alleged himself to be that person because he was
the son of the deceased. These appellants said not so, for you are
illegitimate, and have no inheritable blood, and we propose to try
that question, and if it is decided in our favor, we get the
estate, as we are confessedly in that event the nearest of kin. The
issue thus solicited was framed, voluminous evidence both from
abroad and at home taken upon it, able arguments heard, elaborate
opinions given, and repeated decisions made against the right set
up by these appellants, and yet they are not content. Beaten in the
state courts on the vital question -- the illegitimacy of Ferrie --
they turn to this Court to try over again the very point decided
against them. Can they do this? They say the point was only
cognizable incidentally, but how can this be when the surrogate
could not have done the thing he did do without deciding it? It
Page 80 U. S. 472
had to be decided in order to determine to whom the letters
should issue, and the decision of it of necessity settled the
distribution of the estate. If this litigation can be renewed in a
separate suit for distribution in another court, then the same
persons can try the same question, in respect to the same subject,
in two different suits. The question before the surrogate was the
legitimacy of Ferrie, and the subject in regard to which it was
necessary to decide it was the distribution of the estate. That the
ultimate right of property was the pivot point of the case appears
by the decree itself, for it finds Ferrie to be the legitimate son
and sole nearest of kin of the intestate, and by reason of this
directs administration to be granted to him. And it goes further,
for it finds substantially that the contest was made on the
question of kinship alone, and denies the claim set up by these
appellants. Suppose the suit for distribution had been brought in
the surrogate's court, can there be a doubt that the decree
granting administration to Ferrie would be pleadable in bar to it?
If such be its effect in that court, can or ought it to have a
different effect in another court of concurrent jurisdiction? If
so, then instead of there being uniformity in the exercise of
concurrent jurisdiction, there would be conflicting determinations,
and the evils resulting from such a course of procedure can be
easily foreseen. Neither the policy of the law nor the interests of
society require this to be done.
We have thus far considered the question on principle, but we
are also sustained by authority.
In the Ecclesiastical Courts in England, in cases of intestacy,
the right of administration follows the right to the property,
] as it does in New
York and elsewhere in this country.
The effect of the sentence of the Ecclesiastical Court in
granting administration was considered by Lord Hardwicke in
Thomas v. Ketteriche,
] on a bill filed for distribution of an
intestate's goods, and he held himself concluded by it.
Page 80 U. S. 473
There had been a contest in the Ecclesiastical Court for
administration between the same parties on the point which was the
nearest of kin. The court decided they were in equal degree, and
granted administration to Ketteriche because Thomas was a minor.
Thomas, believing the Ecclesiastical Court had not computed the
degrees correctly and that he was nearer in relationship to the
intestate, filed his bill for distribution in the High Court of
Chancery for the purpose of getting another computation, but the
Lord Chancellor refused to go behind the sentence of the
Ecclesiastical Court. "That court," he said,
"is bound to grant administration to the next of kin, and if I
should determine these parties not to be equal, but the plaintiff
nearer, it is directly contrary to the foundation of this sentence,
which would make it erroneous and to be reversed. The consequence
of which would be that, by choosing to come here for a
distribution, you would change the rule relating thereto, for the
suit might have been in the Ecclesiastical Court for a distribution
as well as here, and that court could not have contradicted the
sentence by which administration was granted."
This decision was in 1749.
In Bouchier v. Taylor,
] the same point was raised and decided the same
way by the House of Lords in 1776. Notwithstanding these decisions,
the question was again the subject for discussion in a suit for
distribution before Vice-Chancellor Bruce in Barrs v.
as late as 1842, and he denied to the sentence of an Ecclesiastical
Court, in a suit for administration, the effect which was given to
it in the other cases. But on appeal to the House of Lords, this
decree was reversed, and Lord Chancellor Lyndhurst, on a review of
all the authorities, held that the question was no longer an open
one. [Footnote 11
] It is to
be observed in regard to the opinion of the learned chancellor that
although he declined to enter into any of the general arguments in
the case, on
Page 80 U. S. 474
the ground that he was bound by the decision of the House of
Lords in Bouchier v. Taylor,
yet he concedes that if the
suit for distribution had been instituted in the Ecclesiastical
Court, the sentence in the suit for administration would have been
conclusive upon it, and if it were conclusive there, that it ought
to be conclusive in the Court of Chancery.
It may therefore, as the result of these authorities, be safely
assumed to be the established law in England that if the sentence
of an ecclesiastical court in a suit for administration turns upon
the question of which of the parties is next of kin to the
intestate, it is conclusive upon that question in a subsequent suit
in the Court of Chancery between the same parties for
We are not aware of any decisions directly upon this subject in
any of the state courts of this country. This doubtless results
from the fact that, with us, estates are settled and distributed in
the same court that grants the letters of administration. It seldom
occurs here that separate suits for distribution are instituted at
all, and very rarely anywhere else than in the courts of probate.
The recent case in this Court of Blackburn v. Crawford,
] is, in some of
its features, unlike this, but the principle of that case would
seem to create an estoppel in this.
On principle and authority, therefore, the judgment in the suit
for administration in New York was pleadable in bar to this suit,
and on that ground alone the bill should have been dismissed.
THE CHIEF JUSTICE having been of counsel for the appellee
Ferrie, did not sit in this case.
2 Revised Statutes 73, § 23.
2 Revised Statutes 73, § 74.
96, § 75, sub 4, 5.
2 Smith's Leading Cases, 6th ed. 648.
2 Revised Statutes of New York 73, § 23; 74, § 27; 96, § 75; §§
74, § 27.
1 Williams on Executors 394.
1 Vesey 333.
4 Brown's Parliamentary Cases 708.
1 Younge & Collier's Chancery Cases 585.
1 Phillips 582.
3 Wall. 175.