In re the Probate of the Will of Ernst

275 A.D.2d 1020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1949
• Status: Published

Opinion

Memorandum: The order of the Surrogate of Erie County sending the issues in a contested probate proceeding to Supreme Court for a jury trial should be modified insofar as said order attempts to limit the proof regarding the mental capacity of the decedent, August B. Ernst, to a period subsequent to April 25,1947. Upon filing objections to the probate of the will of the said August E. Ernst, it became the duty of the Surrogate to make an order directing a trial by jury of the issues raised by said objections and direct that the trial thereof be held either before himself and a jury or at a Trial Term of the Supreme Court to be held within the county (Surrogate’s Ct. Act, § 68). Following the making and entry of an order directing a trial of the issues in the Supreme Court, the conduct of the trial, including the admission of evidence, is solely in that court. Section 68 was never intended to vest in the Surrogate power to regulate in any manner the proceedings in the Supreme Court once the Surrogate has directed the issues in a contested probate proceeding to be tried in that court. All concur. (The portion of the order appealed from restricts proof by contestants in a proceeding to probate a will.) Present — Taylor, P. J., McCurn, Love, Vaughan and Kim-ball, JJ. [194 Misc, 237.]