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to soine undefined incidental jurisdiction of the ecclesiastical courts in England.80

As the Constitutions of this State preserved the right of trial by jury in all cases where it existed at common law,81 and as the ecclesiastical courts never had jurisdiction over devises by the old law, as shown in this introduction, it will be observed that the surrogates' courts continued to possess a limited jurisdiction over devises and their decree was made presumptive evidence only. Whether this even was constitutional may be a question. S2 The power of surrogates over testaments or wills of personal property was much more extended than it was over wills.83 The surrogate's probate of a will of real property is not conclusive and unfortunately cannot be made so, as that would be to deprive a person claiming under cr against a devise of the old common-law right of trial by jury.84 The recent acts to meet this objection, empowering a surrogate to send issues to the Supreme Court for tial by jury are questionable, as the findings of a jury would have to be confirmed by the surrogate before any decree could be entered on them, and they would in that event be his findings and not the verdict of a jury. No new court of record may be created under the Constitution,85 nor can the jurisdiction of any existing court of record now protected by the Constitution be diminished by the legislative transfer of its jurisdiction to the existing surrogates.s

The Legislature has lately been approached by those desiring to amend the law so as to confer a jurisdiction upon the surrogates' courts which will make probates of devises as conclusive as probate of testaments or, in other words, as conclusive as on wills of personalty. If we have regard to historic considerations only, the

80 See Introduction, Redfield's Surr. Matter of Wohlgemuth, 110 App. Practice (5th ed.), p. 17; Matter of Div. 644. Bolton, 159 N. Y. 129.

84 Cf. Chaps. 576, 578, 584, L. 1910; 81 Const., Art. I, § 2.

Van Alst v. Hunter, 5 Johns. Ch. 82 Downs V. Blunt, 170 Fed. Rep. 148, 155; Corley V. McElmeel, 149 15; Rogers v. Rogers, 3 Wend. 503 ; N. Y. 228, 236, 238; Wallace v. Payne, Matter of Goldstein, 192 N. Y. 35, 14 App. Div. 597, 599; Lyons Nat. 38.

Bank v. Shuler, 199 N. Y. 405, 410. 83 Colton v. Ross, 2 Johns. Ch. 85 Const., Art. VI, $ 18. 396, 398; Bogardus v. Clark, 4 Paige, 86 Alexander v. Bennett, 60 N. Y. 623, 625; Rogers v. Rogers, 3 Wend. 204; People ex rel. The Mayor v. 503; Dixon v. Cozine, 64 Misc. 602; Nichols, 79 N. Y. 582.


wisdom of such movement may be questionable; for by the common law, the importance of the freehold and the permanence of the home as an institution have been regarded as inseparably blended with trial by jury from its foundation in this country. Under the present constitutional restrictions on the Legislature any such attempts as those mentioned, which deprive a citizen of the right of trial by jury on questions of title to land, must prove abortive. A new division of the Supreme Court as a court of probate and divorce, with similar jurisdiction to that in England, and with jury parts for the trial of such issues, would not have offended the constitutional restrictions, but it has been rendered impossible for the time being by the constitutional inclusion of surrogates' courts among the constitutionally protected courts.87 The friends of the old surrogates' courts have thus rendered any real reform in the present practice either remote or difficult.

What is very much wanted in this State is a separate Code for the courts of the surrogates now permanently established by the Constitution. Such a code should contain the Decedent Estate Law and all the sections of the Code of Civil Procedure relating to surrogates and surrogates' courts. Any other statutes of the State in pari materia should doubtless be included.

Such a separate code would relieve the Code of Civil Procedure of some of its bulk, and be all the practitioner in the surrogates' courts requires. The recent tendencies of legislation is to make surrogates' decrees conclusive on probate of devises and to that end to provide for a trial by jury. 8 But the system so inaugurated is very clumsy, even if constitutional. In England such jurisdiction is better supplied by the Probate and Divorce division of the Supreme Court. But in this State the surrogates' jurisdiction could now be given to the Supreme Court only by a constitutional amendment, the friends of the existing system having been beforehand.

In this somewhat discursive introduction no more has been attempted than to point out to the reader the historic differences


87 Art. VI, § 15, Constitution of New York.

37a See chap. 584, Laws of 1910, amending § 2624, Code Civ. Pro.,

and chap. 576, Laws of 1910, amending § 2547, Code Civ. Pro., and chap. 578, Laws of 1910, amending $ 2625, Code Civ. Pro.

between wills of lands or real estates and wills of things not land, now called “personal property,” for in the following statute these differences are still very fruitful of practical results. There has been no attempt in this introduction to deal profoundly with historical problems of magnitude. The only effort has been by a few generalizations to show to the reader of the following statute the great importance which historical considerations have on rules of law still perpetuated in this State in the “ Decedent Estate Law"

of 1909.

The Decedent Estate Law


AN ACT relating to estates of deceased persons, constituting chap

ter thirteen of the consolidated laws.

Became a law February 17, 1909, with the approval of the Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:



ARTICLE 1. Short title and definitions ($$_1, 2).

2. Wills ($$ 10-47).
3. Descent and distribution ($$ 80-103).
4. Executors, administrators and testamentary trustees ($$ 110

I 20).
5. Laws repealed; when to take effect ($$ 130, 131).


Short Title and Definitions

SECTION 1. Short title.

2. Definitions.

§ 1. Short title. This chapter shall be known as the “ Decedent

Estate Law.”

Comment. The title of this law is purely arbitrary English. As a mere symbol it may be regarded as suggestive and even catching, and therefore as not wholly inapt. If we liave regard to linguistic purity or even to linguistic propriety, the title of this law is not consonant with English speech. Decedent is a substantive or noun, not an adjective. Therefore, if used with another noun “decedent” requires a hyphen. Etymologically “decedent” means a dying person and not a deceased person. But by a curious legal usage the word has come to signify instead of a living person a deceased person only, and this perverted usage is now extensively sanctioned by authority, especially that of legal writers. But if taken in its secondary sense the word requires to be in the possessive case, if used with law. Decedents' Estate Law would not be inaccurate, if we defer to the late usage just indicated above.

1Decedo," "decedens," "deces- Dict., sub “ Decedent," and sus."

see Matter of Miller, 64 Misc. at 2 Webster's Dict.; Bouvier, Law p. 241.


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