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failure. The distinguished speaker has referred to the history of this country in this direction. He has pointed out that the choicest laurels of our country have been, not in arrogant self-assertion, nor in wars of aggression, but in the protection of the weak against the strong, in cheerful submission to peaceful arbitration. I move that the thanks of this Association be extended to the distinguished speaker for his very able and instructive address. That it be printed among the proceedings of this Association at this meeting and that the distinguished gentleman be elected an honorary member of the New York State Bar Association.
It is moved and seconded that the thanks of the Association be extended to General Foster for his able and interesting address; that it be entered on the minutes of the proceedings, and that he be elected an honorary member of the Association. All in favor of the motion will say "Aye."
The motion was carried unanimously.
General Foster's name will be enrolled among our honorary members. I am requested to announce that when we adjourn there will be a reception at the Fort Orange Club, at which all the members of the Association will meet Mr. Foster.
I am also requested to announce that the next meeting of the Association will be at ten o'clock to-morrow morning, in the rooms of the Common Council, in the City Hall.
The meeting is adjourned.
The Assembly Chamber was filled with a large audience composed of State officers, Judges of the Court of Appeals, members of the Senate and Assembly, members of the Association and representative citizens of Albany, and much interest was evinced in General Foster's address.
A reception was afterwards given to General Foster at the Fort Orange Club, which was participated in and enjoyed by the members of the Association and invited guests.
ALBANY, N. Y., WEDNESDAY, January 20, 1904.
Ten A. M.
The Association met in the Common Council Chamber. President Milburn in the chair.
Gentlemen, you will come to order. The first order of business is the report of the Committee on Law Reform, and next the reports presented yesterday from the special committee in regard to Surrogate's Court matters in conjunction with Judge Marcus' paper. Mr. Fiero, the Chairman of the Committee on Law Reform, is not here yet, and, awaiting his arrival, I will ask Judge Marcus to read his paper, then we will discuss the Surrogate's Court matter. Gentlemen, you all know Judge Marcus, the Surrogate of Erie county so well, that he really needs no introduction. (Applause.)
IS THE SURROGATE's court FULFILLING ITS PURPOSE? 149
Judge Marcus then read the following paper:
IS THE SURROGATE'S COURT FULFILLING ITS PURPOSE?
In order to determine intelligently whether the Surrogate's Court is "fulfilling its purpose," two points must be considered: (1) The development of Courts having for their purpose and object the idea that property should reach its rightful destination as directed by law, or will; and (2) the influences which shaped or controlled the formation of our early probate law and procedure.
The administration and settlement of the affairs of persons deceased will always constitute an important and interesting branch of jurisprudence. In the United States this practice is centered in Courts created for this purpose alone, and their jurisdiction should be commensurate with the extent of the interests which they are intended to care for and protect.
While, in America, Ecclesiastical Courts as such are entirely unknown, yet when the American Colonies severed their connection with England the forms and principles of this branch of the law, as administered in these Ecclesiastical tribunals with reference to the probate of wills, executors, administrators and guardians, were inherited and carried over into the new sovereignty, where the several Legislatures had authority, above custom and tradition. All prerogatives and prescriptive rights went down in the republican form of government.
The shaping of the law and of practice for the settlement and management of the estates of deceased persons was, therefore, largely left to the new people, who were free to exert their own inclinations in its creation and development.
No branch of the law has to do so immediately with the general public as this.
"A person may so regulate his conduct as to keep aloof from courts of criminal and civil jurisdiction, but the cases are rare indeed where he escapes contact with Courts of probate jurisdiction, either as orphan, guardian, creditor or distributee of a deceased person. Hence it is that this branch of the law has suffered greater mutations and changes in the several American States than any other, and has finally vindicated for itself recognition as an independent system, complete within itself, as clearly distinguishable in its scope from other branches of the law as the criminal is from the civil, and differing in its practice and details, quite as much from the rules of common law and equity as the one of these does from the other."
It is interesting to trace the growth and historical development of probate jurisdiction in the several States from that confided to Courts of Ordinary originally created in some of the States in imitation of the English Ecclesiastical Courts, and governed like these by canon law, down to the Courts of Probate Jurisdiction of modern times, by whatever name they may be known, with full legal and equitable powers within their respective spheres of action. The creation of Courts, whatever they may be called, having jurisdiction over matters pertaining to administration, has been found exceedingly useful and convenient to the public; particularly to those people interested in estates as wards, creditors, or distributees. To this circumstance, Judge Woerner ascribes the growth and development of the jurisdiction of this class of Courts; yet, points out that the true distinction between them and Courts of common law, with plenary and equity jurisdiction, is not an arbitrary one based upon the convenience of a particular class of litigants, but that it arises originally out of the nature of the functions performed
by the several classes of Courts; those of probate jurisdiction differing in essential particulars from those of others. And the functions of the Courts of Probate involve many which are not strictly judicial in their nature such as the appointment of administrators, the qualifying of executors, the selection and confirmation or rejection of guardians; fixing the amount and passing on the sufficiency of bonds and sureties; superintending the investment of funds; examining, auditing and passing on inventories, appraisements, accounts, settlements and reports; regulating payment of creditors and marshalling assets; directing the maintenance and education of minors. All of these are duties and powers eminently suitable for Courts having probate jurisdiction, but hardly for those of a judicial character. If Courts of general judicature as now constituted were invested with original probate jurisdiction, they would be burdened with duties repugnant to their office, for the proper performance of such a duty must necessarily be assigned to commissioners, auditors, referees, etc., involving expense, delay and complication.
The subject of jurisdiction properly belonging to Probate Courts (I again follow Judge Woerner) may be grouped and enumerated as follows:
"WITH REFERENCE TO ESTATES OF DECEASED PERSONS. I. Intestates. (1) Appointment of administrators. II. (1) Testators. (2) Probating wills. (3) Qualifying of executors. (4) Appointing administrators with
the will annexed.
III. Decedent, whether testate or intestate. (5) Fixing the amount of bonds of administrators and executors and passing upon the sufficiency of sureties. (6) Receiving and passing upon inventories and appraisements. (7) Determining and adjudicating claims of whatever