The Surrogate.
Upon the first consideration of the order of the Court of Appeals, I was pretty clear that I could not recommence this proceeding as it directed ; but upon a fuller investigation of the statute, I have concluded; that, though the power assumed so frequently by the Supreme Court, to send back a will to be tried by a Surrogate, is,- at the best, a doubtful power, the Court of - Appeals may do so, beyond a doubt,
On appeals from decrees of Surrogates to the Supreme.[277]*277Court, the- practice is not under the Code of Procedure, hut under the provisions of the Revised Statutes. (See Code, % 471.)
Proceedings upon appeals from Surrogates’ decrees, admitting wills to probate, aré regulated by § 13 (90), 3 R. S., 5th ed., p. 905, et seq., and § 71 (55), same volume, pp. 150, 151, et seq.
Section 73 (p. 151) provides: “If it appear to the Supreme Court that the decision of the Surrogate was erroneous, he (it) may, by order, reverse such decision; and, if such reversal be founded upon a question of fact, shall direct a feigned issue to be made up, to try the questions arising upon the application to prove such will.”
Section 18 (p. 905) provides that “ the Supreme Court shall hear the allegations of the parties, upon the proofs submitted by them to the Surrogate, and shall' affirm or reverse the decision of the Surrogate, as shall be just.”
These are all the provisions of the Revised Statutes affecting proceedings of this nature, on appeal to the Supreme Court. It would appear to be clear,' from them, that the Supreme Court must either affirm or reverse-the Surrogate’s decree; and that if it reverse'it on a question of fact, it must send the question to a jury.
In the present case, the- Supreme- Court, taking the-same view of the testimony concerning the factum of the will as was taken by the Surrogate, simply affirmed the decree of probate.
The Code {part 1, title 2, § 11, et seq.) regulates appeals from the Supreme Court to the Court of Appeals. Section 11 provides:
“ The Court of Appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereinafter made, at a General Term, by the Supreme Court,in the following eases, and-nti other”:
“ 3. In a final order affecting a substantial right, made in a special proceeding, - or upon a summary application,, in an action after judgment.” • ' ' •
[278]*278“ Section 12. The Court of Appeals may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the Court below, to be enforced according to law.”
The power of the Court , of Appeals is, therefore, much more extensive than that of the Supreme Court, on such a proceeding, appears to be. It may review every order of the Supreme Court, General Term, affecting substantial right, in a special proceeding; may reverse, affirm or modify it, and remit it to be enforced. 'It is this power which it has exercised over the judgment of the Supreme Court in- the present case. This was a special proceeding (so defined by the Code), which went to the Supreme Court and thence to the Court of Appeals, as a special proceeding. The Supreme Court has obeyed the order of the Court of Appeals, and the Surrogate must place the proceeding again upon his calendar, and try it anew.
The Court of Appeals appears to have reversed the probate on the ground that it is not certain whether the testator or his witnesses signed the will the first. In my judgment there can be no doubt, on the testimony already taken, that the testator signed first. Upon this, and, indeed, upon all the questions of probate, a new trial must, however, be had.
The Surrogate set the proceedings down for a new trial, and proofs were again taken, beginning on the-25th day of February, 1869. ■
The first witness called for proponent was Frailéis P. - Miller.- The contestants objected' that he'was incompetent as a witness, because of interest, being nominated as • an executor in the paper propounded; which objection the Surrogate overruled. The contestants:then objected that he was incompetent because he was a party to this proceeding against the heir-at-law and next of kin, ■ notwithstanding" any "renunciation' of his fight of executor-[279]*279ship. The Surrogate ruled that Miller could not be a party to the proceeding, being neither the proponent, next of kin, heir-at-law, nor claiming interest under any other testamentary paper. The witness was then examined, and testified, in the main, as upon the former trials. Upon the question of the order of the execution of the paper propounded he testified as follows:
Q. I want to know what he said to you after the witnesses were in the room, and he had signed it; what he said to you in regard to putting your names down, if he said anything ? A. He did not say anything more than what I have stated; he said “ I will make the cross—witness it.”
Q. Do you mean that he .said to you to witness it ? A. Tes, sir; he spoke to me.
Q. Spoke to you and directed it; you and Mr. Fisher? A. Tes, sir; he said “get your witnesses; get good witnesses ; get freeholders;” so I selected Mr. Fisher.
Q. When he said to you, after his cross was made, to witness it, did he make that remark to you, or to Mr. Fisher, or to whom ? A. He made it to me more than to Mr. Fisher, I think; we were both present.
Q. Did you thereupon sign your name as witness? A. Tes, sir, I did; and I wrote the name below, also.
Q. Did Mr. Fisher sign it ? A. Tes, sir, in my presence.
Q. Who signed it first? A. I think I did; I am not positive, but I think I did.
Q. Can you tell by looking at the paper (hands witness the paper propounded) ? A. I should judge I signed it first, in consequence of making the cross.
Q. Were they signed-in the order in which the names appear there ? A- I presume they were.
Q. Have you any doubt about it? A. Ho, sir; I don’t think I have; I am not positive; I can’t say positively about that, whether Mr. Fisher signed before me or-not.
Oross-exammed: * * *
Q. Did you write the words at the foot of the will,
[280]*280“Moses W, 9. Jackson, hie mark?’? A. I did; I wrote the words “ his ” and “ mark ” below.
Q. Did you write those words before or after, he made the mark ? A. After he made the mark there.
Q. Ton are sime of it? A." Yes, sir; I did.' That is my usual way, for the simple’reason that I expected him to sign it, and-being unable to dó so, consequently he made his cross. - - - '
Q. When you presented the will to him he was unable to sign it?, A. Tes, sin -
Q. When you presented ■ the will to him for signature did he take it in his hands? A, Tes, sir; he took it.
• He might have had something before him; ■ I cannot designate, particularly what the article was.'
Q. Did you hold the ink-stand ? A. Ho, sir.
Q. Did yoU bring'him a pen full of ink ? A. Tes, sir.
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The Surrogate.
Upon the first consideration of the order of the Court of Appeals, I was pretty clear that I could not recommence this proceeding as it directed ; but upon a fuller investigation of the statute, I have concluded; that, though the power assumed so frequently by the Supreme Court, to send back a will to be tried by a Surrogate, is,- at the best, a doubtful power, the Court of - Appeals may do so, beyond a doubt,
On appeals from decrees of Surrogates to the Supreme.[277]*277Court, the- practice is not under the Code of Procedure, hut under the provisions of the Revised Statutes. (See Code, % 471.)
Proceedings upon appeals from Surrogates’ decrees, admitting wills to probate, aré regulated by § 13 (90), 3 R. S., 5th ed., p. 905, et seq., and § 71 (55), same volume, pp. 150, 151, et seq.
Section 73 (p. 151) provides: “If it appear to the Supreme Court that the decision of the Surrogate was erroneous, he (it) may, by order, reverse such decision; and, if such reversal be founded upon a question of fact, shall direct a feigned issue to be made up, to try the questions arising upon the application to prove such will.”
Section 18 (p. 905) provides that “ the Supreme Court shall hear the allegations of the parties, upon the proofs submitted by them to the Surrogate, and shall' affirm or reverse the decision of the Surrogate, as shall be just.”
These are all the provisions of the Revised Statutes affecting proceedings of this nature, on appeal to the Supreme Court. It would appear to be clear,' from them, that the Supreme Court must either affirm or reverse-the Surrogate’s decree; and that if it reverse'it on a question of fact, it must send the question to a jury.
In the present case, the- Supreme- Court, taking the-same view of the testimony concerning the factum of the will as was taken by the Surrogate, simply affirmed the decree of probate.
The Code {part 1, title 2, § 11, et seq.) regulates appeals from the Supreme Court to the Court of Appeals. Section 11 provides:
“ The Court of Appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereinafter made, at a General Term, by the Supreme Court,in the following eases, and-nti other”:
“ 3. In a final order affecting a substantial right, made in a special proceeding, - or upon a summary application,, in an action after judgment.” • ' ' •
[278]*278“ Section 12. The Court of Appeals may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the Court below, to be enforced according to law.”
The power of the Court , of Appeals is, therefore, much more extensive than that of the Supreme Court, on such a proceeding, appears to be. It may review every order of the Supreme Court, General Term, affecting substantial right, in a special proceeding; may reverse, affirm or modify it, and remit it to be enforced. 'It is this power which it has exercised over the judgment of the Supreme Court in- the present case. This was a special proceeding (so defined by the Code), which went to the Supreme Court and thence to the Court of Appeals, as a special proceeding. The Supreme Court has obeyed the order of the Court of Appeals, and the Surrogate must place the proceeding again upon his calendar, and try it anew.
The Court of Appeals appears to have reversed the probate on the ground that it is not certain whether the testator or his witnesses signed the will the first. In my judgment there can be no doubt, on the testimony already taken, that the testator signed first. Upon this, and, indeed, upon all the questions of probate, a new trial must, however, be had.
The Surrogate set the proceedings down for a new trial, and proofs were again taken, beginning on the-25th day of February, 1869. ■
The first witness called for proponent was Frailéis P. - Miller.- The contestants objected' that he'was incompetent as a witness, because of interest, being nominated as • an executor in the paper propounded; which objection the Surrogate overruled. The contestants:then objected that he was incompetent because he was a party to this proceeding against the heir-at-law and next of kin, ■ notwithstanding" any "renunciation' of his fight of executor-[279]*279ship. The Surrogate ruled that Miller could not be a party to the proceeding, being neither the proponent, next of kin, heir-at-law, nor claiming interest under any other testamentary paper. The witness was then examined, and testified, in the main, as upon the former trials. Upon the question of the order of the execution of the paper propounded he testified as follows:
Q. I want to know what he said to you after the witnesses were in the room, and he had signed it; what he said to you in regard to putting your names down, if he said anything ? A. He did not say anything more than what I have stated; he said “ I will make the cross—witness it.”
Q. Do you mean that he .said to you to witness it ? A. Tes, sir; he spoke to me.
Q. Spoke to you and directed it; you and Mr. Fisher? A. Tes, sir; he said “get your witnesses; get good witnesses ; get freeholders;” so I selected Mr. Fisher.
Q. When he said to you, after his cross was made, to witness it, did he make that remark to you, or to Mr. Fisher, or to whom ? A. He made it to me more than to Mr. Fisher, I think; we were both present.
Q. Did you thereupon sign your name as witness? A. Tes, sir, I did; and I wrote the name below, also.
Q. Did Mr. Fisher sign it ? A. Tes, sir, in my presence.
Q. Who signed it first? A. I think I did; I am not positive, but I think I did.
Q. Can you tell by looking at the paper (hands witness the paper propounded) ? A. I should judge I signed it first, in consequence of making the cross.
Q. Were they signed-in the order in which the names appear there ? A- I presume they were.
Q. Have you any doubt about it? A. Ho, sir; I don’t think I have; I am not positive; I can’t say positively about that, whether Mr. Fisher signed before me or-not.
Oross-exammed: * * *
Q. Did you write the words at the foot of the will,
[280]*280“Moses W, 9. Jackson, hie mark?’? A. I did; I wrote the words “ his ” and “ mark ” below.
Q. Did you write those words before or after, he made the mark ? A. After he made the mark there.
Q. Ton are sime of it? A." Yes, sir; I did.' That is my usual way, for the simple’reason that I expected him to sign it, and-being unable to dó so, consequently he made his cross. - - - '
Q. When you presented the will to him he was unable to sign it?, A. Tes, sin -
Q. When you presented ■ the will to him for signature did he take it in his hands? A, Tes, sir; he took it.
• He might have had something before him; ■ I cannot designate, particularly what the article was.'
Q. Did you hold the ink-stand ? A. Ho, sir.
Q. Did yoU bring'him a pen full of ink ? A. Tes, sir.
Q. Did he take the pen in his hand and try to write ? A. Tes, sir.
' Q. What was the-difficulty that he could not write? AV His- hand trembled,
Q, Very much? A."Tes, sir.'
Q. Where-was Mr. Fisher when that cross was made? ■ A. Mr. Fisher was present, at his side; the other side of •the bed.
Q. Did he ask you to get these witnesses'-before he made that cross?1 A, Tea, sir; twice. ; He told me to . get witnesses. .
Q. Did the witnesses sign it ? A. Tes, sir.
"Q. :Ahd then he made: his'cross? A: He made his cross first. ' '
Q, Do you recollect when you were- examined‘before - the present Surrogate in T865J being asked, “Did they (the witnesses) sign the will before it was executed, Or afterwards?” A. I do'. -
Q. Do you recollect your answering, “ The witnesses signed it and he made.his cross?” Did you or did you not say that? A. My answer was Us I understood the [281]*281question, meaning that the witnesses signed it after the testator; that was my meaning.
Q. Do you recollect then being asked this distinct question, “ Did he make the cross before or after they signed it?” and you answering, “ Afterwards.” Did you, or did. you not so answer ? A. I think I recollect the question.
Q. Did you, or did you not answer as I state ? A. My answer was “afterwards,” meaning that the witnesses signed it after .the testator; no other meaning was conveyed, because that was the case.
Q. Do you mean to say that, when in reply to the question, “ Did he make his cross before or after they signed it ?” jou answered, “ afterwards,” you meant “ before ” ? A. Ho; I meant that he signed it before the witnesses signed it; “ afterwards,” meaning that the witnesses signed it,
Q. When you were asked, “Did he make his cross before or after they signed it ?” and you said “ afterwards,” you meant the “ afterwards ” to apply to the witnesses ? A. I said “ afterwards ”—the witnesses signed it after the testator—that is the meaning that I entertained, and that is the intention and answer, that the witnesses signed it after the testator. ■ I said “ afterwards,” according to the meaning of the question, that I . thought was the meaning.
Q. I will ask you the question now, “ Did he make his cross before or after they signed it ” ? A. He made his cross before they signed it; that I am positive of.
Q. You don’t answer “ afterwards ” now ? A. Ho, sir; “ afterwards ” transposes the two words—it might have been so—but I said “ afterwards,” and made the answer according to the meaning of the question; “ afterwards,” that is, after he had signed it the witnesses did sign it.
Q. Do you .recollect on your former examination being asked when you wrote those words, “ Moses W. S. Jackson,” at the foot of the will, and you answering, “ I wrote it after the will was .executed, the same day, the same morning, as soon as ever I completed it ?” A. Ho, sir, not as soon as I completed it.
[282]*282Q. Did you say so on your former examination? ■ A. Not that I recollect; I don’t recollect that.
Q. Do you recollect that you handed him the pen when he made his cross there? A. Yes, sir; I am certain of that, yes, I am. positive that. I handed.him the pen.
Q. Did he touch the paper with the pen ? A. I cannot say whether the pen touched the paper or not; but I know he attempted to write and was too feeble to do so. * * -x- • , *
Q. You cannot recollect any-reason for delay after the marriage certificate was signed? A. No, sir, I don’t know that there was any necessary delay.
Q. Now, do you. recollect that the execution of that will was delayed until' the arrival of Hr., Davis ? A. Certainly it was, it could not be executed without, it required another witness; according to the- law we must have two, exclusive of my signature. •• ,
' Q. Was the signing of the will by Mr. Jackson delayed, until after Mr. Davis came ? A. No, sir. ;
, Q.,He signed it before Davis came? • A. Yes, sir; of course he did; he signed it before 1 signed it. - - * * «- . •*-. *
• Q. I want to know whether the signing of the will by Mr. Jackson, himself, was delayed to wait for -Davis ? A. No, sir; no,.sir. - - - -
Q. Then is it not true that, between the signing of the marriage certificate and the signing of the will by Jackson, there was no delay to your recollection, and no cause for delay ? A; -No delay, other than what I have stated before; if there was any delay, it was occasioned by the absence of Mr. Davis.
Q. Did not you say, just now, that you .did not delay it to. wait for Mr. Davis ;, what :do you: mean ? A. Mr. Davis was sent for; his name was mentioned with Mr. Fisher’s; and while the boy or man, Mr. -Fisher, I presume, went for Mr. Davis, I sighed the will; also, did Mr. Fisher; and in a short time afterwards , Mr. Davis [283]*283same in and signed it, and he was the last one that signed it.
Q. Was the signing of it by Jackson kept back until Davis came ? A. No, sir; no, sir.
Q. I ask you again, was there any delay after the marriage certificate was signed in the signing of the will by Jackson ? A. No, sir; no, sir; all the delay was in consequence of Mr. Davis.
Q. You say at one time that the signing of the will was not delayed for Davis to come, and the next moment you say it was ? A. No,. I mean what I said; nothing more nor less; I say that the testator signed it first; after that I signed it, and Dr. Fisher signed it;' and while we were signing it we sent word for Mr. Davis, and Mr. Davis he came in just after we had signed it; there was no other delay, that I know of, than that; that is all.
Q. Now, I ask you, for I want to distinctly understand it, whether, after that marriage certificate was signed, there was any delay whatever in the signing of the will by Jackson or any cause for delay ? A. No, sir; not that I know of; no, sir.
Q. Do you recollect the question being put to you on your former examination: “ What was done about the certificate?” and your answering “I drew it up, he signed it, and I gave it to Mrs. Jackson;” did you say so ? A. No, sir; that is a clerical error; he never signed it.
Q. Did you say so ? A. I never meant to, or anything of the kind.
Q. Did you say so ? A. Not to my recollection; it is a thing never done, and never required.
Other witnesses were examined upon the question of general execution, and mental competency, but no other evidence was adduced as to the order of the execution of the paper propounded as a will.
The Surrogate made a decree, on the second day of April, 1869, as follows:
A decree having been heretofore made by this Court, [284]*284that is to say, on the 20th day of September, in the year 1865, by which it was adjudged that a certain instrument in writing, bearing date the 11th day of August, 1862, propounded as the last will and testament of Moses W. S. Jackson, deceased, was duly executed as and- for the last will and testament of the said Moses W. S. Jackson, deceased; that the same is genuine and valid; that the-said Moses W.S. Jackson, at the time of executing the same, was in all respects competent to devise real and personal estate, and was not under any restraint; and' that the said instrument in writing be, and the same' was thereby established as a will of real and personal estate, and that the same be admitted to probate; which said last will and testament is recorded in the office of said Surrogate in Liber 158 of Wills, page 189; and an appeal having been taken to the Supreme Court from the' said decree by Moses W. Sherwood Jackson, a legatée named' in said will, by Elsie Farrand, his guardian, and such proceedings having been had on such appeal, that at a General Term of the said Supreme Court, held at the city of Hew York, on the 10th day of April, in the year 1866, it was ordered adjudged and decreed that the said decree of the said Surrogate" he, and the same was thereby affirmed as to each and every part thereof, without costs;
And the said Mdses W. Sherwood Jackson, by his said guardian, having appealed from the said last mentioned judgment to the Court of Appeals, and such proceedings having been thereupon had that at a Court of Appeals, held at the city-- of Albany on the 20th day of July, in the year 1868, it was ordered that the said judgment of the said Supreme Court, and also the aforesaid decree of the said Surrogate, be, and the" same were thereby reversed, and a new trial was ordered before the said Surrogate, without costs on appeal; and thereupon a remittitur from the said Court of Appeals was sent down to the Supreme Court; and by the said last mentioned Court,, the judgment of the said Court of Appeals was, [285]*285on the 30th day of July, in the year 1868, made the judgment of the said Supreme Court;
And thereupon, in obedience to the - said judgment of the Supreme Court and of the said Court of Appeals, it was ordered by the said Surrogate, on the 10th day of October, in the year 1868, after due notice to the said Hoses W. Sherwood Jackson and his said guardian, and after hearing W. H. Taggart, Esq., counsel in his behalf, that the said paper propounded as the last will and testament of Hoses W. S. Jackson, deceased, be again presented for probate to the said Surrogate, and that a new trial be had thereon, on the 5th day of January, in the year 1869; and the said new trial having been adjourned from day to day by consent of all the parties, and by order of the said Surrogate, the same was brought on before the said Surrogate, on the 25th day of February, in the year 1869, and adjourned from day to day;
And thereupon the said Anna Hargaret Jackson, named as executor as aforesaid, having appeared by Samuel F. Cowdrey as her proctor and counsel in support of the proof of the said instrument in writing, and Hoses W. S. Jackson, a legatee named in the said instrument in writing, and also the only heir-at-law of the said Hoses W. S. Jackson, deceased, who has now arrived at full age, having also appeared by William H. Taggart, his proctor and counsel, in opposition to the same, and no other person having appeared in, the matter, and the proofs and allegations of the said parties having been heard, and after hearing the arguments of the counsel for the respective parties so appearing as • aforesaid, and the said matter having been submitted to the Surrogate for his decision and determination, and after due deliberation being thereupon- had by ■ the said Surrogate; it is ordered, adjudged and decreed, and the said Surrogate doth hereby order, adjudge and decree that the said instrument in writing so propounded, as aforesaid, was duly executed as and. for the last will and testament of Hoses W. S. [286]*286Jackson, deceased, that the. same' is genuine arid" valid'; that the said Moses W. S. Jackson, at the time of exécuting the same, was in all respects competent to devise teal "and personal estate, and was not under any restraint; and- that the said instrument in writing he and the same is hereby established' as a will of real and personal estate, and that the same be readmitted to probate.
And it is further ordered, adjudged and decreed, that the said last will and testament be again recorded, and that the proofs and "examinations now taken in respect to the same be recorded.