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cases to reierees already approved by a majority by their signatures, to the county clerk of New ci the judges they could be thus assured of cap- York, who shall publish the same in a printed list able and conscientious referees, it would appeal to for one week in the New York Law Journal, and them far moi

nore effectively than by trusting to a such list shall be kept recorded in said office. haphazard selection of those who were inexperi- Vacancies therein may be filled by the majority enced, incompetent and extortionate in their vote of the said justices of said department. charges. Undoubtedly the fear of such a choice Sec. 4. After the recording of said names of said as sometimes meets an application for a reference Board of Referees, all appointments of referees deters very many lawyers from referring their by the Supreme Court, or a justice thereof in and cases. It may be said that a referee can always for said department, shall be selected by the Court be agreed upon.

But experience shows that law- of Justice from the members composing said years cannot often agree upon a man whom they board, unless the parties to the action or proceedwould willingly accept if chosen from an approveding in which said reference is made shall by themlist. It is the formal indorsement of a lawyer by a selves select and nominate a referee by consent, majority of a whole bench that makes him accept- as now provided by law. able. And this method will enable the judges to Sec. 5. Any member of said board who shall be select from the best of their appointees, thus sav- appointed referee, and who shall act under such ing them the annoyance of persistent“ nagging" appointment, shall be entitled to receive a comwhenever they preside at Parts I and II of the pensation of five dollars for each hour actually Special Term. Several judges have expressed occupied in such reference by the parties, not their gratification with this feature of the bill. It including any time occupied in drafting a report. cannot be argued that good lawyers will not agree SEC. 6. Any charges made other than as above to serve for the purposely low rate of compensa- provided for shall be considered a misdemeanor. sion, for in a volunteer attempt made some year or Sec. 7. Such appointment shall continue for the more ago on a similar plan over sixty well- term of ten years. equipped and favorably known members of the bar agreed to serve as referees without any com

CONSTRUCTION OF SECTION 2582, CODE pensation whatever, conditioned only that the

OF CIVIL PROCEDURE. seierences be held on Saturdays and during vacation months. The low fee provided by the act ISSUE OF LETTERS TESTAMENTARY PENDING APwill serve, also, to avoid a selection of men who

TO COURT OF APPEALS FROM DECREE would consent to act as referees merely for the

ADMITTING WILL TO PROBATE. sake of the lees. This effort is made with a sincere desire to effect a relief in the direction indicated,

SURROGATE'S COURT WESTCHESTER County, and to escape the 'stigma of deserved ridicule

N. Y. when clients laugh at the statement of their legal advisers as to the time needed to bring a pro

November, 1899. posed lawsuit to a trial. You are earnestly re- In the Matter of the Probate of the Last Will and qrested to send a word or two expressing approval

Testament of CAROLINE REMSEN GIHON. or disapproval of this proposed legislation either Under Section 2582 of the Code of Civil Prodirect to the Hon. James J. Fitzgerald, Assembly cedure a surrogate has jurisdiction to grant Chamber, Albany, or to John Henry Hull. 21

letters testamentary, as in said section proPark Row

vided, pending an appeal to the Court of ApAx Act to provide for a Board of Referees in aid

peals from his decree admitting a will to oi the Supreme Court of the State of New

probate. York.

Upon consideration of the circumstances involved,

the entry of an order directed reciting that in SECTION 1. The justices of the First Department the opinion of the surrogate the preservation of the Supreme Court of this State shall, on or

of the estate requires that letters should issue. before the first day of July, 1900, nominate and

C. N. Bovee, Jr., and F. B. Campbell, for the appoint a Board of Referees to the number of one

motion; Frederick H. Man, opposed. hundred members.

SEC. 2. Such board shall be chosen from the SILKMAN, S. This is an application for the members of the bar in such department who shall issuance of letters testamentary under the authority have been admitted as attorneys and counsellors contained in section 2582 of the Code. at law for five years. They shall be selected and An appeal from the decree admitting Mrs. chosen by a majority vote of all the justices con- Gihon's will to probate was taken to the Appellate tituting such department.

Division of the Supreme Court, where it was Sec. 3. After such appointment of said one affirmed. hundred members as aforesaid, the names of said A further appeal has now been taken to the members shall be sent by said justices, certified Court of Appeals and perfected.





Pending the appeal to the Supreme Court, an it might be argued that section 2582 was limited application similar to the one now before the sur- to appeals from the Surrogate's Court to the rogaie was made, and was denied upon the ground | Supreme Court. that the preservation of the estate at that time did But this construction cannot be given in view of ilot require the issuance of letters to the enchor the history of the section. By chapter 603, Laws

Is I have already said on another application of 1871, it was provided: “Section 1. Appeals, in this same matter, if the facts which have devel- when taken from the decree or decision of the oped subsequent to the former application had Surrogate's Court declaring the validity of the been foreseen, the motion would not have been will and admitting the same to probate, shall not cienied.

stay the issuance of letters testamentary to the Without going in detail into the reasons which executors if, in the opinion of the surrogate, lead to the opinion that the preservation of the the protection and preservation of the estate of estate requires the issuance of letters testamentary, the deceased require the issuing of such letters," it is sufficient to say that the facts set forth in the etc. loving papers show that the securities which “Sec. 2. Such appeals shall have preference for comprise a very large portion of the estate of the hearing in the Supreme Court and in the Court of ciccedent are of such a fluctuating and uncertain Appeals in the same way as is now prescribed by market value as to make it extremely hazardous law in cases where the issuing of letters testamento tie up their disposition until the determination tary is stayed." of the appeal to the Court of Appeals.

This statute clearly includes appeals to the Court If this court should order the temporary admin- of Appeals, as well as appeals to the Supreme istrator to dispose of these securities, an invest- Court. The words “ such appeals in the second ment of the proceeds would be necessary in order section show that the appeals referred to in the to preserve the estate from loss.

first section include appeals to the Court of ApThe discretion to invest is confided to the execu- peals.

It is not a power vested in the temporary When the legislature adopted the first part of administrator, and if it were it could only be exer- the Code of Civil Procedure they provided for cised under the direction of the surrogate, with preferred and deferred causes in article 2 of title the result that the surrogate would be the prac- 6. chapter 8. and by subdivision 5 of section 791 of tical executor of the estate, which I do not think that article incorporated substantially section 2 of the law contemplates, and which result I think the chapter 603 of the Laws of 1871, and at the same legislature intended to obviate by section 2582 of time repealed said section 2 of the 1871 statuie. the Code.

When the legislature adopted the last nine chapters Having arrived at the opinion that the preserva- of the Code in 1880, section i of chapter 603. Laws tion of the estate requires the issuance of letters of 1871, was incorporated in section 2582 of the testamentary, the only question to be considered Code in substantially the same language. as to the court's power to do so under the cir- The difference in language does

alter in any cumstances.

way the meaning of the provisions. The use of The contestant urges that the only power given the word “ appeals " in the law of 1871 has exactly to the surrogate is that contained in section 2582. the same meaning as the words an appeal” as and that such section relates to appeals from the found in section 2582. surrogate to the Supreme Court only.

In construing codified statutes we are not to be The section referred to is found in article 4 of governed by the same rules in respect to the title 2, chapter 18 of the Code. This chapter re- position and association in which we find the lates to “Surrogates' Courts and proceedings doubtful section as we would be if the whole article therein." Title 2 relates to Proceedings in Sur- was the original enactment of the legislature upon rogates' Courts and appeals from those courts." the subject.

The Code includes the statute law as it existed So in construing the Code and determining the at the time of its adoption, with some additions intention of the legislature we must go back to arid new matter necessary to the scheme.

the reasons which existed for the adoption of the The provisions found in the various sections of original law. article 4 are not taken from any one particular As I have said, the original law clearly applied statute; some are collected from different statutes to appeals to the Court of Appeals. The object of and put together in one article, while some are the statute is too obvious to require discussion.

The legislature did not intend to permit loss to This article undoubtedly provides the practice estates consequent upon the delays resulting in the upon appeals taken from the Surrogate's Court hearing and determination of appeals. to the Supreme Court, and upon a cursory exam- The reason for the legislative relief applies with ination it would seem that it did not relate to equal if not greater force to appeals to the Court appeals to any other court, and if the sections of Appeals as it does to appeals to the Appellate contained in it were original legislative enactments Division. Since the statute of 1871 there has been no other provision of law than the Code section a bankrupt do the judgments fail. Judge Coxe which would give relief in such cases.


declares in his decision that it makes no difference The position of the contestant is that at any whether one goes into bankruptcy voluntarily or time until an appeal to the Court of Appeals had involuntarily, judgments recovered within four been taken the surrogate has power to issue limited months prior to the filing of a petition in bankletters testamentary, but the moment an appeal to ruptcy are null and void. that court is taken the power ceases.

It was brought out in the argument of the case Before such an unreasonable construction can that Edward A. Peck filed his petition in kbe adopted something more than the position oiruptcy on December 15. During the first week of section 2582 in the Code of Procedure must be December, Randall J. Le Boeuf, on behalf of shown.

William L. Clute, procured a judgment against The conclusion reached in regard to section 2582 Peck. City Court Marshal Frank Griffin made a seems to be in harmony with the intention of the levy on the goods in Peck's store on the same day revisers. Mr. Throop, in his notes to the section, that Peck filed his petition. Because of this petireiers to it as follows:

tion Referee Lansing. on motion of an attorney “ L. 1871, ch. 605, section i, amended by extend- for another creditor, granted a stay pending a ing the rule to decrees granting letters, and by motion to restrain a sale of property in the interest restricting the prohibition to sell real property, to of Clute and other judgment creditors. Peck apa sale pursuant to directions contained in the will. parently wanted an equal distribution. Isadore Apparently this statute did not prohibit selling real Wachsman was appointed trustee for the creditors, property by direction of the surrogate, and paying and demanded possession of the goods. The case creditors, although in those respects it is obscure. was argued before Judge Coxe, and his decision The amendments remove this obscurity, and ex- will have the effect of putting Clute on the same tended the scope of the statute."

basis as the other judgment creditors. All creditAn examination of the authorities fails to dis- ors share equally, regardless of whether they have close any case holding that the entire article 4 judgments, the court holding, to use its own relates to appeals to the Supreme Court only. phrase, that equality is equity. Several oi the sections have been held to apply cnly to appeals to the Supreme Court. (Matter of Ross, 87 N. Y. 514: Hewlett v. Elmer, 103 N. Y. EFFECT OF NATURALIZATION ON 156; Matter of Smith, 96 N. Y. 661.) But none of

MARRIAGE. the cases determine that article 4 relates solely to appeals to the Supreme Court. It cannot be ar- N important question of private international gued from any of these cases that because other law was decided last week by the house of sections of the same article apply only to the lords in the case of DeNicols v. Curlier. Shortly Supreme Court, section 2582 applies only to such

stated, the facts were these: A Frenchman was appeals.

married in 1854 to a Frenchwoman in France withAn order may be entered reciting that, in the out any marriage contract or instrument in writopinion of the surrogate, the preservation of the ing. They came to England in 1863, and lived estate requires that letters should issue.

there together until the husband's death in 1897. The husband, who had become a naturalized Brit

ish subject in 1865, left a will by which he disposed AN IMPORTANT BANKRUPTCY DECISION. of a large fortune which he had acquired in busi

ness in England since the marriage, and the quesF extraordinary importance is the decision tion raised by an originating summons

whether the change of domicil which had taken the 20th inst., in the case of Edward A. Peck,

place after the marriage altered the legal position grocer, of this city, says the Albany Argus. In his of the parties in reference to property.

Under decision, Judge Coxe, of the United States Circuit French law, where there is no ante-nuptial conCourt, holds that all judgments and levies of the tract the rights of the parties to the marriage are State courts are null and void so far as they relate subject to the system of community of goods as to the property of a bankrupt, if recovered within defined by the French Civil Code, which applies to four months prior to the filing of a petition in movable property belonging to either of the parbankruptcy either by or against him. Judge Coxe ties at the time of the marriage, or acquired by also holds that all creditors of a bankrupt are either of them during the marriage. The Court of equal.

Appeal came to the conclusion, apparently with It is the first time that the question at issue has some reluctance, that they were bound by a debeen decided in this district, although there have cision of the house of lords in Lashley v. Hog (4 been decisions in other districts, some holding one Paton, 581), and held (reversing the decision of way, some another. Judge Thomas, of Brooklyn, Mr. Justice Kekewich) that the effect of the has held that only when a petition is filed against change of domicil was to alter the rights of the

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parties with respect to the movable property, and

Legal Laughs. that as the parties were domiciled in England at the time of the husband's death, their rights

She “What is the term applied to one who were governed by English and not by French law. The house of lords have now reversed this re

signs another person's name to a check?” He cision, and have held that the rights which the

* Five or ten years usually.” — Chicago News.

A child, hearing that his mother had lost a long wise aacquired under French law by the marriage

lawsuit, ran home and said: “Dear mamma. I am were not affected by the husband's subsequent

so glad you have lost that nasty suit that used to change of domicil. Lashley v. Hog was distinguished on the ground that, whereas by Scotch plague you so." law (with which that case was concerned) a wife

Mr. Curran, observing one day in court a louse

a brother barrister's forehead, told acquires by the fact of marriage no proprietary crawling on

him of it. * You joke," said the other. “If you rights whatever, but merely an expectation of shar

have many such jokes in your head," replied Curing, on his death, in the distribution of his prop

ran, “the sooner you crack them the better." erty if he has not already disposed of it, under

An Irish bookseller, previous to a trial in which French law she acquires by virtue of the marriage

he was the defendant, was informed by his counsel a real proprietary right, with which the husband

iliat if there were any of the jury to whom he had cannot interfere. The question as to the effect of a change of domicil after marriage on the rights lenge them. “Faith, and so I will.” replied he:

any personal objections, he might legally chalof husband and wife with respect to movables, in

“ if they do not bring me off handsomely I will the absence of any marriage contract or settlement challenge every man of them.” has hitherto been regarded by writers on private

A well-known judge often relieved his judicial international law as

an open one (see Dicey's wisdom with a touch of humor. One day during “ Conflict of Laws,” p. 648), and it is satisfactory

the trial of a case, Mr. Gunn was a witness in the to know that the view which has found most

box, and, as he hesitated a good deal and seemed favor, and which appears to be in accordance with unwilling, after much persistent questioning, to common sense, is now declared to be correct. tell what he knew, the judge said to him: “Come, Law Journal (London).

Mr. Gunn, don't hang fire." After the examinaiion had closed the bar was convulsed by the judge adding: Mr. Gunn, you can go off: you are dis

cliarged.” The original lines by Bishop Doane on the old and new century, published in the last issue, were furnished by one of the guests to whom we as well as our

Literary notes. readers are indebted for the pleasure of there perusal.

The late Sir Henry Jenkyns. K. C. B., had al

most completed a book on British Jurisdiction English Notes.

Outside the United Kingdom.” It will be published at an early date by the Clarendon Press,

under the supervision of Sir Courtnay P. Ilbert. The youngest son of Lord Russell of Killowen, The Living Age promises a paper on Robert a lieutenant in the artillery, has been called out for Louis Stevenson's Letters, by Augustine Birrell, active service. He has left for the Cape.

in its issue for February 10. There could scarcely

be a more delightful combination of author and By the death of Mr. Sergeant Spinks, who was

subject. the last survivor at the bar of the ancient Order of the Coif, the number of surviving sergeants is re

Hon. Thomas B. Reed, in writing of the modduced to two. Lord Field and Sir Nathaniel Lind

ern trust, does not seem to regard it either as an ley both became sergeants in 1875, but to the latter octopus” or a bugaboo. “My notion,” says he, belongs the distinction of being the last sergeant

“is that while Providence and the higher laws created.

which really govern the universe are, in men's

talk, much inferior to the Revised Statutes before The legal profession has reason to be proud of they are enacted, they are always found to be the readiness with which the members of the Inns quite superior to them after they are enacted. In of Court Rifle Corps have responded to the invi- fact, nature abhors a monopoly as much as it does tation to the volunteers to join the queen's forces

Mr. Reed's paper on Monopolies in South Africa. Over one hundred members of which is to appear in the Saturday Evening Post the corps have volunteered for service at the

a vacuum.”

of February 10 — is a suggestive discussion of the front. A fact scarcely less gratifying is that somie methods of vast corporations. It discusses in a sixty recruits have joined the corps during the striking and original manner one of the most present week. -- Law Journal (London).

pressing questions of the day.


The Albany Law Journal.

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of justice, where innocent men are saved and guilty men are tried according to the law of the land. Hence has arisen the popular be

lief (despite the rule that the accused shall Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y.

be considered innocent until his guilt is Coutributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, proved), shared, in a measure, by the bench Dterest are solicited from members of the bar and those inter- and bar, that every man accused of crime is *led in legal proceedings.

criminal and depraved, and that therefore All communications intended for the Editor should be ad. contact with him should be avoided. Thus dreased simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other the criminal lawyer who, necessarily, must bassess matters, should be addressed to THE ALBANY LAW JOCEAL COMPANY.)

come in touch with such alleged crime and Subscriptou price, Five Dollars per aquam in advanca. Single from the community, but also from the civil

depravity, is practically ostracised not only gamber Twenty-Five Coats.

forum.” ALBANY, FEBRUARY 10, 1900.

That such prejudice does in fact exist, and that men of ability and position too often

shun criminal practice, leaving the field clear Current Lopics.

to unscrupulous shysters, is too true. Mr.

Speranza's complaint of the lack of adequate Na brief though brilliant article in the criminal statistics upon which to base crim

current number of the Popular Science inal legislation is also worthy of considerMonthly, Mr. Gino C. Speranza, a promi-ation and action by the proper authorities. nent and highly cultured member of the New Although it may be true that continental York bar, laments the decline of criminal jurists have refined the criminal law to an jurisprudence in this country. Answering unpractical degree, Mr. Speranza does not the question, "What is being done by our think it will be claimed that in adhering to law schools for the study of criminal law?” an old-fashioned and obsolete criminal juristhe author shows that the time devoted to prudence the Anglo-Saxons are safeguarding the study of this branch at Harvard is but a their fundamental liberties. His declaration little over three per cent., while Columbia that under our system technicalities and not devotes to it a little over four per cent. of the facts too often save scoundrels, and that the entire course; which is about the percentage penal provisions of our present laws are ingiven by Yale and a little lower than that of appropriate, inelastic and unscientific will be the Universities of Michigan, Cornell and concurred in by many who, like Mr. SperNew York, respectively. The author con- anza, have given most careful consideration cludes, and not without reason, that the study to the question. of criminal law has become practically optional, of little consequence to the student, The Supreme Court of Ohio, in the case of and perhaps of less interest to the teacher. Ohio ex rel. W. W. Savage v. Joseph Hidy, In deploring the existence of a very strong Judge of the Common Pleas Court, passed prejudice against the criminal bar, Mr. Sper- upon the interesting question of the right of anza says, with much force: “From the very judges-elect to practice law until their inducbeginning of his legal career the future law- tion into office. Mr. Savage was elected a yer is made to feel that the field of criminal Common Pleas judge last November for the law is not the one in which to exercise his third subdivision of the Second Judicial Disbest talents. Both the school curriculum and trict. He is interested in several important popular sentiment strengthen this prejudice. cases in Clinton county. Judge Hidy, actTo the community at large our criminaling, presumably, under original section 5562, courts have come to mean places where passed in June, 1824, refused to permit Mr. criminals are sentenced or rogues saved on Savage to appear in the cases, and the latter technicalities; they have ceased to be centers I instituted a proceeding in mandamus to com

VOL. 61 - No. 6.

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