Among these are two cases by the learned surrogate who entered this decree, showing, we believe, more the care with which he viewed the issue of jurisdiction than a possible error by him in this instance. In In re Kalik's Estate, 178 Misc. 607, 35 N.Y.S.2d 16, he declined to settle partnership affairs against an objecting partner, and in In re Krasnofsky's Esstate, 157 Misc. 759, 284 N.Y.S. 738, he declined to order payment of insurance where the estate had no interest in the policies or the proceeds. Plaintiffs also go outside the record to assert that here the executors had no actual interest in the policies, since the children's interest came from some trust arising by agreement between the parents and the payments to the executors were designed to supply ready cash to avoid forced conversion of other assets of the estate.

The only issue for determination here is whether the estate is entitled to the fund. (Surrogate's Ct. Act, § 205; Matter of Krasnofsky, 157 Misc. 759, 760; Matter of Brennan, 129 Misc. 283; see, also, 3 Warren's Heaton on Surrogates' Court [6th ed.], § 235, par. 3, subd. [c].) We find in the record no competent evidence sufficient to rebut the presumption that Franciszka Jagodzinska, at the time she established the account in question, intended to create a joint account including rights of survivorship with her daughter Lottie Drzyzga, this appellant.

This estate now has no interest in these claims and therefore this court has no jurisdiction to entertain and/or determine same. (See Matter of Krasnofsky, 157 Misc. 759, 760, and cases cited therein.) "It is primary that jurisdiction, if not inherent in any court, is impossible of bestowal by consent or acquiescence of the parties [cases cited]".

This estate now has no interest in these claims and therefore this court has no jurisdiction to entertain and/or determine same. (See Matter of Krasnofsky, 157 Misc. 759, 760, and cases cited therein.) "It is primary that jurisdiction, if not inherent in any court, is impossible of bestowal by consent or acquiescence of the parties [cases cited]".

" The explanatory note printed with the legislative bill (see 1939, Assembly Int. 1695, Pr. No. 2641). sets forth the purpose and extent of the amendment as follows: "An amendment is also proposed to authorize the bringing in of third parties who may claim title to or a right to possession of the personal property or the proceeds thereof sought to be discovered by the representative of the estate. In Matter of Krasnofsky ( 157 Misc. 759) it was held that the Surrogate's Court had no jurisdiction in a discovery proceeding to determine conflicting claims between the respondents where a determination had already been reached by the Surrogate that the estate had no interest in the proceeds sought to be discovered. The amendment is limited to a determination between the representative of the estate and all other claimants as to whether title is in the estate.

" The explanatory note printed with the legislative bill (see 1939, Assembly Int. 1695, Pr. No. 2641). sets forth the purpose and extent of the amendment as follows: "An amendment is also proposed to authorize the bringing in of third parties who may claim title to or a right to possession of the personal property or the proceeds thereof sought to be discovered by the representative of the estate. In Matter of Krasnofsky (157 Misc. 759) it was held that the Surrogate's Court had no jurisdiction in a discovery proceeding to determine conflicting claims between the respondents where a determination had already been reached by the Surrogate that the estate had no interest in the proceeds sought to be discovered. The amendment is limited to a determination between the representative of the estate and all other claimants as to whether title is in the estate.

Where the issue does not directly affect the administration of the estate this court would not be justified in asserting jurisdiction because of the terms of section 40 of the Surrogate's Court Act. ( Matter of Thomas, 235 A.D. 450; Isaacs v. Isaacs, 208 id. 61; Matter of Krasnofsky, 157 Misc. 759; Matter of Maer, N.Y.L.J. Nov. 2, 1935, p. 1648.) The application is denied for lack of jurisdiction.