The People agt. Newell.

foreign country they would be deprived of the protection and consideration involved in being American citizens. Congress could never have intended to pass an act which could be so construed as to work such results. It is not necessary to determine whether the naturalization of the husband is also the naturalization of the wife upon the common-law theory that they are but one person; or whether she becomes a citizen by virtue of the statute. For no importance can be attached to the mode in which she becomes a citizen. It is enough that a certain event which has happened makes her one. In Leonard agt. Grant (supra), it was decided, among other things, that a woman who is married to a citizen of the United States becomes such by that act, and that such admission to citizenship has the same force and effect "as if such woman had been naturalized by the judgment of a competent court." The learned counsel for the plaintiff in their brief suggest that "naturalization is a matter of record; a judgment of a court upon evidence." This is so where the statute has so declared, but in the case of infants and women the statutes declare that they may become citizens under certain circumstances, without any judgment or record. There are also numerous other cases where no record is required. When Louisiana, Florida and Texas were admitted into the union, the citizens of those states or territories were made citizens of the United States without the judgment of any court and without the action of any of their citizens. So, too, the civil rights bill made citizens of all negroes born in this country. who had been slaves (United States agt. Rhodes, 1 Abb. U. S. R., 28).

The same is true of the treaty of peace of 1783 between Great Britain and the United States. In Shanks agt. Pont (3 Peters, 247), the supreme court of the United States speak on this subject as follows: "During the war each party claimed the allegiance of the natives of the colonies as due exclusively to itself. The Americans insisted upon the allegiance of all born within the states respectively, and Great Britain asserted

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In the Estate of Joshua York, deceased.

an equally exclusive claim. The treaty of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those whether natives or otherwise who then adhered to the American States were virtually absolved from their allegiance to the British crown, and those who then adhered to the British crown were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states on each side, and the inhabitants thereof; in the language of the seventh article it was a firm and perpetual peace between his Britannic majesty and the said states, and between the subjects of one and the citizens of the other.' Who then were subjects or citizens was to be decided by the state of facts. If they were originally subjects of Great Britain and then adhered to her and were claimed by her as subjects, the treaty deemed them such. If they were originally British subjects but then adhering to the states, the treaty deemed them citizens." It thus appears that citizens may be created by acts of congress, treaties and the judgments of courts. There can be no room for doubt as to the proper disposition of this case. The complaint must be dismissed and judgment ordered for the defendant.

SURROGATE'S COURT.

In the estate of JOSHUA YORK, deceased.

Surrogates- Their jurisdiction to determine who are legatees, and to what sums they are entitled — Code of Civil Procedure, section 2743.

The surrogate has jurisdiction, upon entering a decree for the judicial settlement of an executor's account, to determine who are testator's legatees, and to what sums they are respectively entitled and in spite of the limitations of section 2743 of the Code of Civii Procedure, he may exercise such jurisdiction in respect to legacies whose validity is disputed by the executor, and even in cases where such determination necessarily involves the construction of the testator's will.

New York County, November, 1884.

In the Estate of Joshua York, deceased.

ROLLINS, J.-This testator, by one of the clauses in the second article of his will, gives $500 "to the trustees of the Second Avenue M. E. Church, corner of One Hundred and Nineteenth street, towards paying off the debt of the church." By the same clause, also, he gives "to the managers or trustees of the Methodist City Mission five hundred dollars." His executor having filed an account of his administration, now seeks to enter a decree for its judicial settlement; but he attacks the validity of both the above named legacies, and suggests that the surrogate, for lack of jurisdiction to determine the questions thus raised, should direct the accounting party to retain in his hands a sum sufficient to meet any demands growing out of these bequests, that may be successfully prosecuted in a competent tribunal.

He claims that the bequest first named is ineffective by reason of the fact that the church in One Hundred and Nineteenth street is not now in debt, and was not in debt when the testator died. He claims also that there is no existing person or institution bearing the name of "Methodist City Mission," and none which is competent to take the bequest whereof the will makes the Methodist City Mission the beneficiary.

It is insisted in behalf of the parties respectively claiming as legatees that the surrogate is fully authorized by the Code of Civil Procedure to determine these disputed questions.

Section 2743 of that Code provides that "where an account is judicially settled as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights.

The section further declares that "where the validity of a debt, claim or distributive share is not disputed or has been established, the decree must determine to whom it is payable,

In the Estate of Joshua York, deceased.

the sum to be paid by reason thereof and all other questions concerning the same."

In the case of Fraenznick agt. Miller (1 Demarest, 136–151) I contrasted the section just quoted from the Code with the statutory provision which it had superseded, namely, section 71, title 3, chapter 6, part 2 of the Revised Statutes (3 Banks, 6th ed., 104). I referred to the fact that while by the earlier provision the right of determining all questions concerning any debt, claim, legacy, bequest or distributive share had been conferred upon the surrogate, the authority of that officer to make such determination is limited by the later statute to "debts, claims or distributive shares whose validity is not disputed or has been established.

Because of this fact and because of the fact that Mr. Commissioner Throop had declared in his edition of the Code by a note to the very section under consideration, that it was the purpose of the codifiers to bring the letter of the new enactment into unmistakable conformity with the construction that the courts had put upon the old, I felt bound to hold in Fraenznick agt. Miller, that whenever an executor or administrator should dispute the validity of a demand against his decedent's estate, whether such demand should be made in behalf of one claiming as creditor, or as legatee, or in any other capacity whatsoever, the authority of the surrogate in the premises would be straightway suspended, and would remain suspended until the validity of such demand should have been passed upon by some tribunal of competent jurisdiction, and by some other tribunal, of course, than the court or the surrogate.

While this interpretation was in my judgment unavoidable, I adopted it with no little reluctance, and am glad to find what seems to me abundant warrant for abandoning it, in certain recent decisions of the court of appeals.

In " Matter of Verplanck Estate" (91 N. Y., 439), where questions similar to those here presented were under consideration, EARL, J., pronouncing the unanimous opinion of that

In the Estate of Joshua York, deceased.

court, declared that surrogates "must have jurisdiction to construe wills so far at least as is needful to determine to whom legacies shall be paid." Referring to the then recent decision in Riggs agt. Cragg (89 N. Y., 479), he added: "We were unanimously of the opinion that they possessed such a power under the Revised Statutes before the Code of Civil Procedure, and it was clearly not the intention of the Code to narrow or diminish the jurisdiction of surrogates but rather to enlarge it." By the words italicised, taken in connection with their context, I understand that the propositions declared in Riggs agt. Cragg, respecting the jurisdiction of surrogates upon final accountings, though those propositions in terms relate only to cases arising under the Revised Statutes, are pronounced to be equally applicable to cases arising under the Code.

In Riggs agt. Cragg a person claiming as legatee sought to enforce from his testator's executors the payment of a disputed legacy. There were divers persons interested in the estate whose rights would be affected by the enforcement of a decree in the petitioner's favor. None of these persons were cited or had appeared as parties to the proceeding. Commenting upon this fact, ANDREWS, J., pronouncing the opinion of the court, said: "When the surrogate can see that other persons claim, or may claim the same thing as the petitioner, and that a real question is presented as to the right of several persons to the legacy or fund, natural justice requires that he should not proceed to a determination without the presence of all the parties who may be affected by the adjudication. The statute provides for bringing in all the parties in interest on the final accounting, and in that proceeding jurisdiction is conferred to settle and adjust conflicting rights and interests.”

The learned justice subsequently referred to the oft cited decision in Bevan agt. Cooper (72 N. Y., 317), and after suggesting that, upon the reported facts of that case, there seemed to have been no necessity, as incident to the accounting or distribution, for the surrogate to assume the power of interpreting the testator's will, added: "It is doubtless true.