2 Dem. Sur. 443 | N.Y. Sur. Ct. | 1884
The questions at issue in this proceeding are the following:
First. Was the instrument lately admitted to probate as the last will and testament of Jesse Hoyt duly executed in accordance with all the formalities prescribed by law ?
Third. Does it express his free, untrammeled testamentary purposes ?
The decree whereby it has heretofore been admitted to probate must be revoked in accordance with the prayer of the petitioners, unless these questions shall all be answered in the affirmative. The situation of the proponents does not practically differ from that which they would occupy if the issues of the present contestation had been made up at the time the paper here in dispute was originally offered for probate (Code Civ. Pro., § %65% ; Collier v. Idley’s Executors, 1 Bradf., 94). And the decree by which it was granted must stand or fall, according as the proponents shall satisfy or fail to satisfy the Surrogate that, within the meaning of § 2623, the alleged will “ was duly executed, and the testator, at the time of executing it, was in all respects competent to make a will, and was not under restraint.”
It has been repeatedly held in this State that, in probate controversies, the burden of proof rests in general upon the proponents from the beginning to the end of the litigation. It has, nevertheless, been the practice of Surrogates’ courts to receive from proponents, in the first instance, but slight evidence of a testator’s' mental capacity and freedom from undue influence or restraint, affording them, at the close of the presentation of the contestant’s proofs upon those issues, the opportunity of attacking such proofs by any relevant and material testimony, even though not of such a character as to be deemed strictly rebuttal. It seems to me that this
In the exercise of reasonable caution, proponents would feel bound to defend against all possible assaults the competency of their decedent and his freedom from restraint. This course would often be pursued in cases where it would subsequently appear that the precaution had been quite unnecessary.
Now, in the case at bar, the proponents have thus far called three witnesses, and have examined them touching their knowledge of the execution of the paper here propounded. One of these witnesses, Mr. Cornelius Van Santvoord, testified with considerable particularity in respect to the preparation of that paper, and the bodily and mental condition of the testator about the time of its execution, and in respect also to other testamentary instruments previously executed.
The proponents have now rested, and the contestants, through their counsel, ask the court to decide whether, after the proofs on their part shall have been submitted, the proponents will be allowed to present in opposition any and all material and relevant testimony touching competency and restraint which they may see fit to offer, or whether, in the presentation of such testimony, they will be limited to matter strictly in rebuttal. Contestants’ counsel does not attack the authority of this court to pursue the practice to which I have already referred, but they claim that these proponents have undertaken at the outset to carry a greater burden than, at that stage of the proceedings they were called upon
Assuming, for the present, that the contestants are correct in insisting that their antagonists have exceeded the limits within which parties proponent have been accustomed to confine themselves in the conduct of probate controversies, I cannot sanction the claim that there is any strict rule of law applicable to the situation, as distinguished from a mere rule of practice, which may be adhered to or abandoned, as the Surrogate may determine. On the contrary, I am confident, upon a careful examination of authorities, that I am at liberty to exercise my discretion in deciding whether or not to allow the proponents, at a subsequent stage of these proceedings, to introduce evidence which shall not be rebuttal in its character, and which would have been admissible in chief before the contestants had entered upon their proofs (Holbrook v. McBride, 4 Gray, 215; Morse v. Potter, 4 Gray, 292; Union Water Co. v. Crary, 25 Cal., 504; Kohler v. Wells, Fargo & Co., 26 Cal., 613; Bryan v. Walton, 20 Ga., 510; Briggs v. Humphrey, 5 Allen, 314; Gaines v. Commonwealth, 50 Penn. St., 319; Finlay v. Stewart, 56 Penn. St., 183; Day v. Moore, 13 Gray, 522; McCoy v. Phillips, 4 Rich., S. C., 463; Morris v. Wadsworth, 17 Wend., 103; Hastings v. Palmer, 20 Wend., 225; Ford v. Niles, 1 Hill, 300; Wright v. Foster, 109 Mass., 57; Marshall v. Davies, 78 N. Y., 414).
In any state of the evidence, I should, therefore,
In no case, of course, can proponents safely rest until they have introduced such evidence respecting the execution of the disputed paper, the strength of the decedent’s mind, and the freedom of his will, as would entitle them to a favorable decree in the event of the contestants’ failure to introduce evidence in opposition. They must, therefore, in the nature of things, be permitted within reasonable limits to determine for themselves the nature and'extent of the evidence by which their contention shall be supported. I do not think that the proponents in the case at bar have departed from the ordinary practice in any such fashion as to warrant me in imposing upon them the restrictions suggested by contestants’ counsel.
The contestants may proceed with their proofs on Tuesday next.
Section 2618 of the Code of Civil Procedure contains the following provisions as to proceedings in Surrogates’ courts, for the probate of a paper propounded as a will:
“The Surrogate must cause the witnesses to be examined before him. The proofs must be reduced to writing. Before a written will is admitted to probate, two at least of the subscribing witnesses must be produced and examined, if so many are within the State, and competent and able to testify......Any party who contests the probate of the will may, by a notice filed with the Surrogate at any time before the proofs are closed, require an examination of all the subscribing witnesses to a written will, or of any other witness whose testimony the Surrogate is satisfied may be material; in which case all such witnesses who are within the State and competent and able to testify must be so examined.”
What is the meaning of the words above quoted, and how, if at all, have they changed the course of procedure which obtained in probate controversies before the enactment of the Code ?
These questions arise upon the following state of facts : The . proponents of a paper which is claimed to be this decedent’s will, lately finished the presentation of their proofs. .The contestant, through her counsel, thereupon filed an affidavit alleging facts which tend to show that -.the: testimony of certain persons in such affidavit named “maybe material” to the issues of
Upon these facts, I am now asked to determine—
1st. Are the proponents bound, under the provisions of § 2618, above quoted, to produce before the Surrogate the persons named in the notice ?
<3ncl. When those persons shall be produced, what will be the respective rights and privileges of the parties hereto, in reference to their examination 1
3rd. In case it shall be decided that the proponents are responsible for their production, shall the contestants be conceded as of course the right to an immediate examination, or is it discretionary with the Surrogate when such examination shall be had ?
Upon these questions, the views of opposing counsel are utterly at odds. On the one hand it is claimed that § 2618 has made a radical change in the procedure of Surrogates’ courts,- and has very substantially enlarged the powers and privileges of contestants. It is insisted, on the other hand, that the section in dispute has effected no essential modification in the law as it existed before the enactment of the Code. It is manifest that the particular facts and circumstances of this case are of no importance to the present inquiry, and I shall, therefore, refrain from commenting upon them.
I understand contestant’s counsel practically to claim that parties opposing the probate of a will areno longer required, unless they choose so to do, to produce wit-, nesses in their own behalf and submit them to the-cross-examination of their adversaries, but that, on the contrary, they can require their adversaries to produce and examine in chief every person who can give evidence material to the issues, and that, at the conclusion of such examination, they themselves can exercise all the privileges of cross-examination, with such right of impeachment, contradiction, etc., as that privilege ordinarily carries with it.
In opposition to this view it is insisted, on behalf of the proponents, that § 2618 does not in terms require at their hands either the production for examination or the examination of any of the witnesses included in the contestant’s notice. They contend that the sole purpose which that section aims to accomplish is to secure to contestants the absolute power of preventing the ad-' mission, of a will to probate until they have first been afforded an opportunity of taking the testimony of every witness whom the Surrogate shall decide to be material. Either of these constructions is plausible enough, and both of them have been supported by ingenious and elaborate arguments.
As' the language of the section is fairly susceptible of such widely different' interpretations, it is well to inquire what statutory provisions in pari materia were
Section 17 declared that no written will should be deemed proved until the witnesses to the same, residing within this State at the time of such proof, of sound mind, etc., should have been examined pursuant to law.
By chapter 129 of the Laws of 1841, the scope of § 11 of the act of 1837 was greatly enlarged. It was
It can scarcely be contended that the Legislature ever
I think that the substitution of the Code provisions for those contained in tíre acts of 1837 and 1841, has not served to enlarge in any respect the rights which contestants formerly enjoyed. My construction of § 2618 is this : By filing such a notice as is therein mentioned, and by satisfying the Surrogate of the materiality of the witnesses whom such notice specifies, contestants can effectually block the probate of a disputed will until such witnesses (if competent, within the State, etc.) have been examined. If, after filing such a notice, contestants should cease to take any active part in the proceeding, it would nevertheless be the duty of the Surrogate to take heed that no decree should be
For this reason, I hold that the duty of producing such witnesses falls upon parties proponent, not because the statute so declares, for it does not, but because, as it fails to impose that duty upon parties contestant, they can rest securely upon the fact that, until such witnesses have been produced and examined, the will cannot be admitted to probate.
Second. Then comes the question, by which party should the witnesses produced according to notice be first examined ? In answering this inquiry, it is important to consider a fact which has been the subject of comment by the counsel on both sides of this controversy. I refer to a peculiarity of probate proceedings which distinguishes them from almost all other judicial investigations. When once an instrument purporting to be a will has been produced before the Surrogate, and parties in interest have been summoned to attend its probate, it is no longer under the control of the persons who have propounded it. They cannot claim the right to withdraw it from the files, even though all persons interested consent to that course. Hor, on the other hand, can they, by obtaining the consent of all such persons, procure its admission to probate.
The proceeding is in effect a proceeding in rem. The Surrogate must enter a decree pronouncing for or against the will. The parties may, of course, be active or passive, and may favor or oppose probate according to their interests or inclinations. But whatever course they may pursue, it is the Surrogate’s duty (Code, § 8688) ‘6 to inquire particularly into all the facts and cir
These considerations lead me to the conclusion that the course of the examination of witnesses, brought into court by proponents at the instance of contestants, is a matter purely in the discretion of the Surrogate. Such witnesses must be examined because the law demands their examination, whenever the proper notice has been filed and the Surrogate has found them to be material. They are not to be charged, so to speak, to the account of either party. They are to be examined by the Surrogate. . In cases where the proceeding before the Surrogate has assumed, as it has here assumed, the form of a trial, in which the parties are represented by counsel, the Surrogate can doubtless require such counsel to assist him in the examination.
But it seems to me that neither party can demand, as of right, the opportunity of first examining the witness who has been produced in pursuance of the notice, and'that neither party can demand, as of right, that his opponent shall be required to begin such examination. The Surrogate should see to it that both parties are afforded a fair opportunity for full and searching investigation. In many instances—perhaps in most instances—where witnesses shall be thus brought into court at the request of contestants, it will be the most natural course to call upon the contestants themselves to pursue the inquiry in the first instance, because, presumably, they will be better advised than their adversaries as to the precise matters which they wish and expect to prove; but in such cases a direction to the
' How far, if at all, the conduct of the examination of such witnesses may properly be regulated by a consideration of their friendliness or unfriendliness to the one party or the other, or by other circumstances apparent when they are upon the stand, is a matter which will be determined when the occasion for its determination arises.
Third. There only remains to be considered the question when it is that witnesses produced in accordance with § 2618 are to be examined. I hold that this is a mere question of order of proof, and that it is entirely within the discretion of the Surrogate. In the exercise of such discretion, he would ordinarily permit the party applying for the examination to decide for himself when that examination should be had. In the present case, I can see no reason why the testimony of the persons named in the notice should not be taken at once, if the contestant so desires. As those persons are severally called to the stand, the court will give whatever special direction as to their examination the circumstances shall seem to warrant.