Surrogate's Court, New York County, April, 1899. [Vol. 27. It has been held that the surviving husband can only take the choses in action of his wife by reason of his sole right to administer, and that if he fails to so administer and reduce these choses to possession, they belong upon his death, to his wife's next of kin. 2 Williams, Exrs. (7th Am. ed.) p. 75. On the other hand, it is said that upon the death of the wife the husband takes her property, whether in action or in possession, not as administrator but jure mariti, so that if he omits to recover her choses in action during his lifetime they will belong to his next of kin, and, although her representatives may be entitled to administer upon such choses, they will hold the proceeds thereof as trustees of the husband's next of kin. 2 Williams, Exrs. (7th Am. ed.), p. 69; 2 Kent's Com. 136. The weight of authority favors the last view, it being generally conceded that whatever the character may be in which the surviving husband takes his wife's unrecovered choses in action, he and his next of kin are entitled to the ultimate benefit therefrom because he sustains the relation of husband. Gilman v. McArdle, 12 Abb. N. C. 414, reversed on other grounds, 99 N. Y. 451. The courts in this state construe the common law as meaning not only that the surviving husband takes absolutely because of his marital right, but also that, in the event of his death without administering, his next of kin are entitled to administer upon and hold as their own the unreduced choses in action which belonged to his wife. Ryder v. Hulse, 24 N. Y. 372; Estate of Warner, 2 Connoly, 347. And this is true whether such choses are payable on the death of the wife, or are mere reversionary or contingent interests, payable at a future day, or mere possibilities. Olmsted v. Keyes, 85 N. Y. 593. The opinion expressed in the case of Barnes v. Underwood, 47 N. Y. 351, that the surviving husband takes solely as administrator, is rejected as incorrect by the court in the leading case of Robins v. McClure, 100 N. Y. 328. An examination of the decisions in the state of New Jersey reveals a conflict on the question. There is ample authority, however, to sustain the view that the surviving husband takes unreduced choses of his wife jure mariti. Donnington v. Mitchell, 2 N. J. Eq. 243, and see Rinehart v. Harrison, 1 Baldwin, 177, which is a decision of the United States Circuit Court in New Jersey. My decision, therefore, is that the next of kin of the husband, through his ancillary administrator, are entitled to the fund to be distributed, and the decree should so provide. Decreed accordingly. Misc.] Surrogate's Court, New York County, April, 1899. Matter of the Proceedings for the Probate of the Will of MARY JOHNSON, Deceased. (Surrogate's Court, New York County, April, 1899.) Surrogate - His powers to complete the unfinished business of his predecessor-Probate of a wiil. An incoming surrogate has power, under the provisions of the Code of Civil Procedure authorizing him " to complete any unfinished business pending before his predecessor in the office including proofs, accountings and examinations" (see § 2481, subd. 8), to decide a proceeding for the probate of a will which has been tried before and submitted to his predecessor and it is not necessary that the matter should be tried de novo. PROCEEDINGS upon the probate of a will. Facts in decision. Alexander & Green (Frederick Coudert and Paul Fuller, of counsel), for proponent. Thomas E. Fitzgerald and William H. Regan (David McClure, of counsel), for contestants. VARNUM, S. This case was tried before and submitted to Surrogta Arnold, but no decision thereon rendered by him before hist retirement from office. Subsequently, in accordance with the procedure suggested by this court in the Matter of Lawrence (N. Y. Law Journal, March 15, 1899), due notice was given to all parties, bringing said matter before me as the successor of Judge Arnold, on a motion that I complete the trial herein as unfinished business pending before my predecessor in office. The object of such notice was merely to bring the matter before me in an orderly way for the continuance and completion of the proceedings, and to afford the parties an opportunity to submit additional testimony or to be heard, in accordance with the decisions cited in the opinion in the Lawrence case. Upon the return day no suggestion of a desire to submit additional testimony was made, but the counsel for the contestants objected to the reception by me of the evidence previously taken before Surrogate Arnold, to any decision by me based thereon, and insisted that the case should be tried de novo, Surrogate's Court, New York County, April, 1899. [Vol. 27. and asked to be heard upon such objection, which request was granted. The question has since been fully argued before me by learned counsel on both sides. I have already indicated in the opinion in the Lawrence case my own views upon the question, and I see no reason to change them despite the able and ingenious argument of the learned counsel for the contestants. The precise objection taken by him has been not only directly passed upon by this court (3 Red. 74; 4 Red. 286, etc.), but also by the Appellate Division of the Supreme Court, fourth department, as late as 1897, in the Matter of Carey, 24 App. Div. 531. The cases referred to would naturally be controlling upon me, even if my own opinion were not, as it is, in thorough accord with them. The principal contention of the contestants is that a judge who passes upon controverted questions of fact should have the advantage of seeing the witnesses and hearing them give their testimony, and attention is called to article 6, section 3, of the Constitution of the state. But, as said in the Carey case, there is nothing to prevent the legislature from dispensing with such requirements under certain contingencies, which the cases above cited hold has been done. Attention is also called to the fact that in the Court of Chancery witnesses were usually examined by examiners appointed by the court for that purpose and rarely before a vice-chancellor, and that a majority of the causes were heard and determined solely upon the depositions returned. In the Surrogate's Court also, under the provisions of section 2540 of the Code, the examination of aged and infirm witnesses residing in another county may take place before the surrogate of that county or a referee, which may be considered and acted upon by the surrogate with the same force and effect as if the witnesses had actually appeared before him. This court can also take judicial cognizance of the fact that substantially the same mode of procedure now prevails in the Federal courts as in the old Court of Chancery. But even admitting that, other things being equal, it is preferable that the judge deciding the case should both see and hear the witnesses, there are certain contingencies when the greatest hardship and injustice, and, in some cases, an actual failure of justice might result from a rigid adherence to such a practice. It is not fair that the death or removal or withdrawal of a single judicial officer should entail upon the litigants burdensome work, endless delay and heavy expense without any fault of their own. It is but reasonable to suppose that the legislature had the possibility of just such con Misc.] County Court, Madison County, April, 1899. tingencies in view when it amended the law and provided that a surrogate, amongst his other prerogatives, should have power "to complete any unfinished business, pending before his predecessor in the office, including proofs, accountings and examinations." In the case under consideration, it appears from the record that the trial before Surrogate Arnold began October 18, 1897, and ended May 25, 1898; that about 25 witnesses were examined and more than 1,175 typewritten pages of testimony taken. The contestants' counsel requests that my decision herein should be in the form of an order denying or granting a motion, obviously for the purpose of appeal therefrom if possible. I am of opinion that my decision should stand simply upon the basis of a ruling upon an objection raised upon the trial of an action, and that the objector is merely entitled to an exception thereto. The notice of motion above referred to was given solely for the purpose of continuing the proceedings and to afford the parties opportunity, as before stated, to be heard further or put in further testimony, and they have been so heard. I, therefore, hold that I have full power to proceed with the determination of this case, and the contestant is allowed. an exception to my ruling herein. Decreed accordingly. REUBEN H. WEBB, Respondent, v. BERTHA HECOX et al., Appellants. (County Court, Madison County, April, 1899.) 1. Action, in justice's court, to recover a chattel - Jurisdiction of justice. Section 2919 of the Code of Civil Procedure, declaring that an action to recover a chattel can be tried before a justice of the peace of the county in which the chattel is found, controls the question of jurisdiction and the provisions of section 2869 of said Code are not in point. 2. Same-Failure of plaintiff's sureties to justify - Wrongful delivery by constable. Where, after the defendants in such an action have excepted to the Bureties on the plaintiff's undertaking, the sureties fail to justify, the County Court, Madison County, April, 1899. [Vol. 27. constable must deliver the property to the defendants, and his delivery of it to the plaintiff makes him personally liable if the defendants prevail. 3. Same-Waiver of justification. Where, however, the plaintiff presents his sureties on the return day and offers them for examination as to their sufficiency and the defendants' attorney remains silent and no justification takes place and the plaintiff succeeds on the merits, the failure to justify is not a sufficient ground for the reversal of a judgment in favor of the plaintiff. APPEAL from a judgment rendered in a Justice's Court. M. E. Milliken, for appellants. D. L. Atkyns, for respondent. SMITH, J. This is an appeal from a judgment rendered in Justice's Court in the town of Georgetown, this county. The action was brought to recover the possession of a certain horse, which the plaintiff claims the defendants wrongfully took and detained All the parties were residents of the county of Chenango. It appears by the officer's return that the summons, affidavit, requisition and undertaking were served on the defendant Eugene Hecox in the town of Hamilton, this county; and also, on William J. Henry, the person in whose possession the property was found; but that no service was made on the defendant Bertha Hecox, as she could not be found in this county. The defendants served exceptions to the sureties to the undertaking given by the plaintiff, and the officer delivered the property replevied over to the plaintiff. On the return day the defendants appeared by counsel specially before the justice and objected to the jurisdiction of the court upon various grounds, among which were the following: That the action was not brought in the town in which either of the parties reside, or in an adjoining town; and that the plaintiff was not in the town in which the action was brought at the time it was commenced. The objections were overruled, whereupon the counsel for the defendants withdrew, and the defendants made no other appear |