
    In the Matter of the Judicial Settlement of the Account of Ellen Cavanagh, as Administratrix, etc., of Mary Cavanagh, Deceased, Respondent. James McCauley and Others, Appellants.
    Second Department,
    July 23, 1907.
    Surrogate — executor and administrator — accounting — erroneous ruling.
    When on the accounting of an administratrix, she makes claim to the whole estate as a gift from the intestate, it is error for the surrogate to rule that one objecting to the proof of such claim in said proceeding on the ground of lack of jurisdiction must either'allow her to give testimony as to her claim, or if he maintain the objection to jurisdiction, admit that the property is her individual property.
    Appeal by James McCauley and others from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 6th day of December, 1906, overruling the appellants’ objections to the accounting of the administratrix herein.
    The account was filed on November 21, 1905, 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, the 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 personal' 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 pro.ve 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.
    
      T. B. Chancellor, for the appellants.
    
      Robert B. Alling [H. D. Van Orden with him on the brief], for the 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; 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 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.  