White v. Nelson , 2 Dem. Sur. 265 ( 1883 )


Menu:
  • The Surrogate.

    The evidence shows that there has been brought into the county of New York a “Japanese folding chair,” which belonged to this decedent at the time of his death, and upon which, for aught that appears, no administration has yet been had. That fact gives the Surrogate of this county jurisdiction of the present proceedings. The New Jersey statute, cited by the respondent’s counsel, does not stand in the way, as no steps are claimed to have been taken thereunder to set apart the property in question for the family of the decedent. The value of this chair is probably so inconsiderable that I might have doubted whether its existence in this - county *268afforded a sufficient basis for jurisdiction, but for the decision of the Court of Appeals in Van Giessen v. Bridgford (83 N. Y., 348). If a family bible and a pair of ear rings constitute sufficient assets for jurisdictional purposes, a Japanese folding chair may equally answer that end.

    Subsequently, on January 17th, 1884, the following opinion was filed:

    The Surrogate.

    Since I decided that I had jurisdiction of this proceeding, my attention has been called to the provisions of part 2, ch. 6, tit. 3 of the Revised Statutes of Hew York.

    Section 9 (3 Barilcs, 7th ed., ££95) provides as follows: “Where a man having a family shall die leaving a widow, etc., the following articles shall not be deemed assets, but shall be included and stated in the inventory of the estate, without being appraised.”

    Then- follows a list of the articles, which includes, among other things, “six chairs.”

    It is claimed that, though the existence in this county of the Japanese folding chair would, in the absence of this statute, alone suffice to give the Surrogate of Hew York jurisdiction of this estate, he is debarred from exercising such jurisdiction by the statutory exclusion of six chairs from the category of “assets.”

    This objection cannot be sustained. Section 2476 of the Code provides that “the Surrogate’s court of each county has jurisdiction .... to take the proof of a will .... in either of the following cases : , .... 3. Where the decedent, not being a resi-. *269dent of the State, died without the State leaving personal property .... which has since his death come into that county .... and remains unadministered.”

    These provisions have taken the place of R. S. part 2, ch. 6, tit. 2, § 23; and of L. 1837, ch. 460, §1.

    In both those sections, the word assets is used, instead of the expression personal property, as it appears in the Code.

    The reason for the change readily suggests- itself, and is stated by one of the Code Commissioners in his note to § 2476. The word assets, says Mr. Throop, “is usually understood to relate only to personal property applicable to the payment of debts. The Surrogate, ought to have jurisdiction if any unadministered property exists, even though the whole is reserved by law to the widow or family. ’ ’ I think, therefore, that, upon the Japanese folding chair, even' though it be not deemed “assets,” the jurisdiction of the Surrogate securely rests.

Document Info

Citation Numbers: 2 Dem. Sur. 265

Filed Date: 11/15/1883

Precedential Status: Precedential

Modified Date: 2/5/2022