THE PUBLIC ADMINISTRATOR US. WARD.

lic administrator in relation to said effects." If it shall appear that "any effects of the deceased are concealed or withheld," a warrant issues for the search for and seizure of "the said effects;" and for that purpose the officer executing the same, may "if necessary break open any house in the day-time," and "deliver the said property so seized to the public administrator." The warrant, however, shall not be issued "to seize any property, if the person in whose possession such property may be, or any one in his behalf" shall execute a bond with sufficient sureties, conditioned "that the obligors will account for and pay to the said public administrator the full value of the property so claimed and withheld," whenever it shall be determined in any suit brought by him "that the said property belongs to the estate of any deceased person, which the administrator has by law authority to collect and preserve." This statute confers very large powers upon the Surrogate, and is to be construed with care, and acted upon with prudence. The scope of the inquiry is large, and for obvious reasons, there being no harm and much probable benefit in ascertaining all the facts possible relative to the estate of the deceased. But when the statute approaches the remedial action of the Surrogate, the language is greatly narrowed. Whatever may have been the extent of the examination, the subject matter of the warrant is definite and limited. The warrant cannot issue unless it appear that some of "the effects of the deceased are concealed or withheld, and the person having the possession of such property shall not give the security."

In the case now before me, the widow of the deceased has acknowledged the possession of some of the assets of the testator, and has delivered them to the public administrator. But it appears by her own statement, that at the testator's death she was possessed of certain coupon bonds to a considerable amount, and which she has since sold. She claims that these bonds were her own property-investments of the proceeds of her own labor, or gifts from her husband, and that prior to his decease they were in her possession.

THE PUBLIC ADMINISTRATOR vs. WARD.

The person at present having possession of these bonds, has not been ascertained in this inquiry; and the only question now is, whether a warrant for their seizure shall be issued, and an officer be authorized to search for them, and under a roving commission to break open any house. The statute refers generally to any effects of the deceased, "or of which he had possession at the time of his death, or within twenty days previous thereto." The first clause refers to property of the deceased; the second, to such as was in his custody. The bonds which are the subject of the present investigation, do not appear to have been in the testator's custody or possession at the time of his decease. The widow claims them as her own property, and alleges constant possession. I have very great doubts whether this statute was intended to be applied to a case where the party having the property, holds under a fair color of title, adversely as against the deceased, and not derived through him. The primary object seems to have been the rescue, or restoration of effects of the deceased not satisfactorily accounted for by the persons who were about him in his last sickness, or in whose hands they had fallen. The provision restraining the issue of a warrant if a bond be given, of course implies that a warrant may issue when there is an adverse claimant-but then the nature of the claim, its apparent reasonableness, and the evidence and circumstances by which it is supported, may all be taken into consideration by the court in determining whether the subject matter constituted "effects of the deceased" at the time of his death. Where the deceased had not possession of the property at his death, nor twenty days previous thereto,-where no advantage has been taken by attendants during the last sickness, so as to purloin, secrete, or obtain effects by importunity, fraud, or undue influence; where at the time of the decease the assets remained in the same possession and condition as they were in for a long time before; and where in fact the claim to the effects is independent and adverse even as to the deceased himself, it seems to me the statute was not designed to be invoked. The public administrator has the same remedy the

THE PUBLIC ADMINISTRATOR vs. WARD.

intestate had, by his action at law. The claimant has not come into possession by seizure, but she held under color of title in the intestate's lifetime; and there would seem to be no reason why the occurrence of his death should expose her to have the subject of controversy forcibly wrested from her by an extraordinary process.

But again, the warrant is not to be issued unless it appear that the effects of the deceased "are concealed or withheld." The bonds in question are neither concealed nor withheldthey have been sold. The widow is not in possession, and therefore cannot surrender possession. The bond is to be given by the person in possession or some one in his behalf-that person has not been ascertained, nor has any effort been made for that purpose. If it were made, it would result only in finding a purchaser in good faith for a valuable consideration. If the property had clearly belonged to the intestate, and been unlawfully seized and disposed of, a warrant ought not to be stayed because the wrong-doer had sold it. But under such a claim of title as is made in the present case, it would I think be a harsh proceeding, never contemplated by the law, to compel an honest purchaser who had paid the consideration, to surrender the property. I am of the opinion therefore under the circumstances, that a warrant should not issue.

FERRIE VS. THE PUBLIC ADMINISTRATOR.

FERRIE VS. THE PUBLIC ADMINISTRATOR.

In the matter of the Estate of JEANNE DU LUX, deceased. THE recent act of the Legislature of the State of New York authorizing "illegitimate children, in default of lawful issue, to inherit real and personal property from their mother as if legitimate," did not affect any right or title vested at the date of the passage of the act in the lawful heirs or next of kin of any person theretofore deceased. This act does not in terms disturb the usual course of a grant of administration; but if the descent of the illegitimate claimant in default of lawful issue, be proved satisfactorily, it may be proper in the exercise of a sound discretion to make the grant; while on the other hand, if the proofs are not clear, prudence may require the intervention of the Public Administrator, or some other disinterested person, to insure a just scrutiny and the protection of the rights of third parties.

On the decease of an intestate, title to his goods can be made only through the medium of an administrator; and the next of kin have no legal title to the assets; but they have a vested interest in the surplus of the estate, after the payment of the debts, which cannot be taken away by legislative act. The statute of distributions may be changed prospectively, but not retrospectively without disturbing vested rights.

Statutes must be construed prospectively, unless there are very express words giving them a retrospective application.

The Court will not depart from the usual method of issuing commissions to take testimony in foreign countries, unless important advantages to be gained by some other mode are shown.

The French Consul is entitled, both by treaty and comity, to be heard in this Court, not as a party, but informally as the national agent of parties supposed to be interested.

CHASE & BALL,

ROBERT H. SHERWOOD,

PATTERSON & EASTMAN, for Claimant.

I. The evidence shows that Ferrié is next of kin and legitimate, and therefore entitled now to letters of administration. On the former hearing, the Court was satisfied that Ferrié was the son of Madame Du Lux, and that the evidence on the

FERRIE VS. THE PUBLIC ADMINISTRATOR.

whole sustained the legal presumption of legitimacy, yet declined to grant letters as prayed for, but expressed an intention to issue a commission to take further testimony in France.

We submit that this intention ought to be re-considered, and that under the changed aspects of the case as disclosed at the present hearing, the Court ought to grant the letters forthwith, without sending out a commission at all.

It is to be borne in mind, that upon the original evidence Ferrié was entitled to letters as asked for by him.

The delay of the grant, and the proposition for a commission are favors to possible unknown successors to the personalty, to be discovered in a foreign land.

II. The changed circumstances which in our judgment make the delay improper, and the duty of immediately granting the letters imperative, are these:

1. The Legislature of New York since the former hearing have enacted the following law, "to take effect immediately." "Illegitimate children, in default of lawful issue, may inherit real and personal property from their mother as if legitimate; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased."

2. Upon the present hearing, four French claimants appear, but make no suggestion and offer no evidence of the pretended illegitimacy of Ferrié. The proceedings are notorious in France, and still no such evidence is suggested to exist.

3. A letter from another French claimant, a relative of Du Lux the husband of the deceased, offers to Ferrié incontestable evidence of his title to the entire succession, i. e. of his legitimacy, for the moderate compensation of one half of the estate.

4. The legislative act shows that the policy of excluding illegitimates from succession to the personalty of mothers, which existed at the time the Surrogate suggested the commission, has been abandoned: the other two facts strengthen the conclusion that Ferrié is, in fact, legitimate.