In re the Judicial Settlement of the Account of Cavanagh

Jenks, J.: I think that the learned surrogate was right in holding that his court had jurisdiction. (Sexton v. Sexton, 64 App. Div. 385; affd., 174 N. Y. 510.) The objection of the contestants first made was' upon the lack of power in the surrogate to hear the claim, and was then restated as against the inconsistent position of the accounting-party with respect to the property. But the learned surrogate had no right to push the counsel to the alternative that if he insisted on his objection to the “jurisdiction” he must admit that the accounting party was “in possession of property under claim of gift.” The counsel had admitted nothing, and he had a right to make his objections, whether good or bad, and to ask for rulings upon them. There was no allegation with the objection or to be implied therefrom to the effect that “as such property had.been delivered to the administratrix during the lifetime of the deceased, it did not constitute part of the estate of the deceased and, therefore, was not the subject of investigation on such hearing.” The point of the objections, as I interpret them, was, first, as to the jurisdiction generally, and,, second, to inconsistent position of the accounting party — her “ estoppel ” as the counsel put it. But even .if the counsel was bound to accept (as he was not),.the alternative of the learned court, “ or you can insist on your objection of [202] want of jurisdiction and admit that she is in possession of property under claim of gift” was not an admission that she personally owned the property, for such possession does not imply that it was in her possession as “her own individual property.” The course of the counsel cannot be construed as a waiver of. the contestants’ claim or as a concession of that of the respondent. An objection to the jurisdiction if not well taken certainly cannot oust the court of jurisdiction, and the court cannot in effect determine that such an objection leaves nothing for the court to determine in the controversy before it. I think that the court should have proceeded with the hearing. Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred. Decree of the Surrogate’s Court of the county of Kings reversed, with costs, and proceedings remitted to the surrogate for a hearing on the merits.