111 N.Y. 523 | NY | 1888
Lead Opinion
This is an appeal by the executor of the will of John Burger, deceased, from an order of the General Term, reversing on the facts the decision of the surrogate of Monroe county, admitting the will to probate and directing an issue to be tried by a jury as to the mental capacity of the testator when the will was executed. The appellant in limine insists that the General Term had no power to review the finding of the surrogate on the facts, for the reason that there was no sufficient exception in the case. This question involves a consideration of the practice to be pursued on an appeal from the decree of a surrogate in probate cases, in order to enable the General Term to review his decision on the facts. Section 2576 of the Code expressly authorizes an appeal to be taken from the decision of a surrogate "upon questions of law, or upon the facts, or upon both." The contestant in her notice of appeal specified that the appeal was taken both on the law and the facts. The surrogate, after the hearing, made and filed his decision, stating separately his findings of fact and his conclusion of law. He found that the will was duly executed; that at the time the testator was of sound mind, competent to make a will, and fully understood its contents, and was under no restraint; and, as a conclusion of law from these facts, that the will should be admitted to probate. The contestant thereupon excepted in writing to "each and every part of the conclusion of law" found and contained in the decision of the surrogate, and made no other exception to the findings and no requests to find were made by either party.
The exception to the conclusion of law raised simply the question whether, upon the facts found or any supporting facts not specifically found, the conclusion was justified. (Belknap
v. Sealey,
The point of practice is, was the contestant bound to except to the surrogate's finding that the testator was sane, or to present a request that he should find that he was insane and incapable of making a valid will, and except to the refusal of the surrogate to find in accordance therewith, in order to enable her to argue the facts at the General Term, and the court to decide upon them? We think not, and are of opinion that the appeal from the decision of the surrogate on the facts as well as the law, was alone sufficient to give the appellate court jurisdiction to review the facts, and that an exception was neither necessary nor proper. In the ordinary case of an action triable by jury, the General Term has power to review the facts, and reverse and order a new trial if justice seems to require it, although there may be evidence to sustain the verdict. But in that case no exception is necessary to give the court jurisdiction. It is necessary, however, that a motion for a new trial should have been made and denied by the court below, for the plain reason that on such a motion the trial judge has, for the first time, an opportunity to pass on the facts, and the party making the motion may, by that means, obtain the necessary relief without an appeal. But an appeal from an order denying the motion gives the appellate court jurisdiction to review the facts, and it does not depend on any exception. (Matthews v. Meyberg,
We think the true rule under the Code is, that an *529 appeal on the facts from the decree of a surrogate admitting or refusing to admit a will to probate brings up for review in the Supreme Court the question of the sufficiency, weight, or preponderance of evidence, and the general merits of the decision; and that it is not necessary that any exception should have been taken to the findings of fact, or that there should have been any request for findings in order to give the General Term jurisdiction to review the facts, and reverse or affirm the decision of the surrogate thereon. But where the appeal is also upon the law, only such questions of law can be considered as have been properly raised by exception. If an exception was taken to the conclusion of law of the surrogate, it raises the question whether it was justified by the facts found. If taken to a finding of fact, it presents the question whether there was any evidence to sustain the finding. So, where the surrogate refuses to make any finding whatever on a question of fact, or where he makes or refuses to make a ruling upon any question of law, an exception lies and his decision may be reviewed in the appellate court. But an exception to facts found, or to a refusal to find upon a question of fact is only important to entitle the appellant to have a review, first in the Supreme Court, and afterwards in this court, of the strictly legal question which it is the office of an exception to present. But in the Supreme Court the facts are open for review without any exception. An application to a court for a new trial on the facts in no proper sense presents a question of law. It is an appeal to the conscience of the court, and it is asked to consider whether, on the whole facts, a new trial ought not to be had. The review on the facts by the Supreme Court, of a decision of a surrogate admitting a will to probate, still retains, in many features, the character of a rehearing in equity. This is quite clear from section 2586 of the Code, which permits the General Term, on appeal from the surrogate on the facts, to receive further testimony or documentary evidence and appoint a referee, and declares that the appellate court has the same power to decide the questions *530 of fact which the surrogate had. We are of opinion, therefore, that the point of jurisdiction of the General Term urged by the appellant is not well taken.
We are not sure that what has been said may not be inconsistent with some expressions in Angevine v. Jackson (
We think the proper disposition of the case is to dismiss the appeal, leaving it to stand upon the order of the General Term.
Concurrence Opinion
I am inclined to agree in the result reached by the foregoing opinion, and to modify the doctrine of Angevine v. Jackson,
so far as to hold that even in probate cases, and notwithstanding the supposed tenor of section 2545, an exception to a finding of fact is neither permissible nor necessary. In that action, nevertheless, our conclusion was correct, because no case was made and settled and signed by the surrogate, as the Code explicitly commands (§ 2576), when the appeal is sought to be taken upon the facts; and the papers did not show that the whole evidence was returned, as the General Terms have required by decisions which we have approved. (Spence v. Chambers, 39 Hun, 193; Porter v. Smith,
All concur with ANDREWS, J.; FINCH, J., concurring in result.
Appeal dismissed.