Opinion
November 15, 1946.
Appeal from Nassau County Surrogate's Court, HOWELL, S.
Edward Marks for appellant.
William J. Beglin for respondent.
In this matter the determination held that a bond and mortgage in the principal sum of $4,500, made to Charles P. Simonson, the respondent, and his wife, Harriet E. Simonson, now deceased, on the 10th day of November, 1926, and received by them as part of the purchase price of a parcel of land which they had owned for twelve years as tenants by the entirety, created a joint tenancy despite the absence of words of jointure or survivorship and that they were, therefore, the sole property of the respondent, the surviving husband.
The wife, Harriet, died intestate on the 6th day of December, 1932, leaving her surviving her husband, the respondent, and her son, the appellant, the latter being the only issue. No letters of administration were applied for or issued on her estate, for the reason that respondent claimed that all property, including the bond and mortgage here involved, was jointly owned by him and his deceased wife, with right of survivorship. Concededly, there were no words of jointure or survivorship in the documents in question.
This proceeding was instituted by the petition of the respondent, verified and filed on the 10th day of May, 1945. Citation to show cause was thereupon issued and directed to the appellant, Raymond E. Simonson, the only other interested party. The issue joined by service of an answering affidavit was tried and witnesses heard.
The appeal should be dismissed, with costs, on the ground that the surrogate had no jurisdiction and that the determination is void, without prejudice, however, to the commencement of a proper action in the Supreme Court, if the respondent be so advised. The matter should be remitted to the surrogate to enter an order vacating the determination appealed from. The Surrogate's Court derives its jurisdiction from statute, and such jurisdiction relates to matters affecting estates of decedents, but not to matters which are independent thereof involving controversies between living persons. (Surrogate's Ct. Act, § 40; Isaacs v. Isaacs, 208 App. Div. 61; Matter of Ihmsen, 161 Misc. 789.)
LEWIS, P.J., HAGARTY, JOHNSTON, ALDRICH and NOLAN, JJ., concur.
Appeal from a determination of the Surrogate of Nassau County dismissed, with costs, without prejudice to the commencement of a proper action in the Supreme Court, if respondent be so advised, and the matter remitted to the surrogate for the entry of an order vacating the determination appealed from.