
    (121 App. Div. 200)
    In re CAVANAGH.
    (Supreme Court, Appellate Division, Second Department.
    July 23, 1907.)
    1. Executors and Administrators—Assets—Personal Claim—Jurisdiction oe Surrogate.
    The Surrogate's Court has jurisdiction to settle an administratrix’s account, in which she returns certain money as assets of the estate, but also claims it as her own as a gift from the decedent.
    2. Same—Disputed Claims—Hearing—Objection to Jurisdiction.
    Contestants at the hearing on an administratrix’s account objected generally to the jurisdiction of the court to hear a personal claim of the ad- : ministratrix to all the property returned as assets, but claimed to have been given to the administratrix by the decedent. Held, that the objection to the court’s jurisdiction was not an admission that the administratrix was entitled to the property as a gift, or a waiver of contestants’ claim that the property was assets of the estate.
    Appeal from Surrogate’s Court, Kings County.
    Settlement of the account of Ellen Cavanagh, administratrix of Mary Cavanagh. From a decree dismissing objections to the proof of a claim, contestants appeal.
    Reversed and remanded.
    The account was filed on November 21, 1906, and three months thereafter the individual who had filed the account as said administratrix filed with the surrogate an affidavit to the effect that the decedent in her lifetime had made a gift to her personally of all the property mentioned in the account. Certain of the objectors and the accounting party appeared at the hearing, and at the outset the accounting party called a witness. After several preliminary questions, tlie counsel for the contestants said: “I want to interpose an objection to the attempted proof -of this claim, on the ground that there is no authority or jurisdiction in the surrogate to hear such a claim. The Surrogate: What do you mean? I don’t understand your point. Counsel: This administratrix has come in and filed an account- setting forth the personl property left by the decedent. She now comes in on the same accounting with a claim that this property was a gift to her. The Surrogate: The Code says that a claim of an administrator or executor against an estate must be proved before it will be allowed. I don’t see your point. Counsel: My point is this: That the administratrix in a sense is estopped as to that. She takes an inconsistent position. The Surrogate: She takes the position which the Code says she must take. You can take your choice —whether you are willing that -she should assume the affirmative and prove her claim, or you can insist on your objection of want of jurisdiction and admit that she is in possession of property under claim of gift. Counsel: I object on the ground that the court has no jurisdiction. The Surrogate: Objection sustained on the ground that, as the property is in her possession as her own individual property, there is no necessity for her accounting therefor.” The objections were dismissed by the decree.
    Argued before HIRSCHBERG, P. J„ and WOODWARD, JENKS, RICH, -and MILLER, JJ.
    T. B. Chancellor, for appellant. '
    
    Robert B. Ailing, for respondent.
   JENKS, J.

I think that the learned surrogate was right in holding that his court had jurisdiction. Sexton v. Sexton, 64 App. Div. 385, 72 N. Y. Supp. 213, affirmed 174 N. Y. 516, 66 N. E. 1116. 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 a 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 efíect that, “as such property had been delivered to the administratrix during the lifetime of the deceased, it did not constitute a 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 juris■diction 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 want of jurisdiction and admit that she is in possession of property under claim of gift,” it 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.

” Decree of the Surrogate’s Court reversed, with costs, and proceedings remitted to the surrogate for a hearing on the merits. All concur.  