157 N.Y.S. 553 | N.Y. Sur. Ct. | 1916
This is a motion addressed to the surrogate, sitting at this February Trial Term of the Surrogates’ Court, for an order transferring the issues in a contested probate proceeding* to a Trial Term of the Supreme Court of the State, pursuant to section 2538, Code of Civil Procedure. It appears that the usual interlocutory order for trial by jury of stated issues of fact in this proceeding pursuant to rule VII of this court has already been made by my honorable colleague sitting at chambers on the 17th day of December, 1915. I observe' that this order was, however, made after I had first announced, on the prior motion in this matter for temporary administration (■as appears by the published reports of the proceedings then before me), that I would send the issues of fact for trial by jury demanded by contestants to the Supreme Court, if the cause was ripe for that disposition. I was then informed by counsel (Mr. Leslie J. Tompkins) that 'the cause was not ripe for that solution and no1 such order was made by me.
The proceeding for probate herein first appeared for trial on the contested probate calendar at a Trial Term of this court for January, 1916, held by Mr. Surrogate Cohalan, but counsel not being ready in January the causé was' adjourned (as it now appears under a misapprehension, to which I shall hereafter advert) to the March Trial Term, 1916, to be held by Mr. Surrogate Cohalaist ; thus passing* over the entire February Trial Term. Had it not been for such misapprehension, the cause would have regularly appeared on the list of contested probates at this February Trial Term, 1916. In that event this motion now here could have been made at any time before the jury was sworn, and there would have been no embarrassment about the disposition of this motion, as under section 2538, Code of Civil Procedure, the issues of fact for a jury could either be tried by
The present motion made at this Trial Term of this court for February, 1916, assumes importance not only because of the magnitude of the charitable bequests contained in the will of the late Mr. Eno, now offered for probate, but to some extent, because of the uncertainty of the true meaning of the somewhat vague Practice Act since September, 1914, regulating the practice and procedure in this court in contested proceedings for probate.
The conversion by the Surrogates’ Act of 1914 of a probate court into a court where trials by jury may be had in probate propeedings, under certain circumstances, is in itself such a revolution in the former practice in probate matters, as ■ administered in Mew York for upwards of two centuries and in the common-law system for upwards of seven hundred and fifty years, that it is not surprising that very important questions of law are presented by this motion. I may call 'attention in passing to the fact that, in remodeling the old probate courts of the cbuntry whence we derived ■ our common law, no such bold and subversive procedure was attempted by the skillful law-reformers of that country. Our Surrogates’ Act of 1914 is without precedent in the legislation of any country.
A probate proceeding is a proceeding in rem; there is no plaintiff and no defendant; 'the whole issue before the probate court is one directed to the factum of will, and the entire proceeding is on the testamentary script or paper which is always
In view of the sections of the Code (2614, 2538) just mentioned it is obvious, I think, that the old practice on a devisavit vel non once issued out of chancery affords an outline for the logical practice tó be pursued when the trial is had with the aid
The inherent difficulties arising under the present Surrogates’ Practice Act, providing for jury trials in contested- pro
As to the merits of this motion so ably presented with care and precision by the distinguished counsel for the proponent and the residuary legatees, I entertain not a single doubt, and had it not been for the misadventure alluded to and the cause been now regularly on for trial before me at this February term (as it should have been, in the ordinary course), I should have deemed it my imperative duty, in view of the discretion lodged in the trial surrogate and the inconclusiveness of a verdict by the jury in this- court and the many uncertainties of our new practice, to grant this motion. The transfer to the Supreme Court obviates many difficulties- and- much lessens the costs and expense to the parties. But the trial of this cause-, for the reason stated, is not now on the docket or list of causes for trial before me at this February term. It is now on the trial list for the March term. It is, nevertheless, urged by counsel for the motioners that under the -act now regulating this court that this is the only place where this motion, so brought bn before me,
When an order for trial by jury in a probate proceeding is made in this court it is a just, proper and full compliance with such order to transfer the controverted issues of fact to the Supreme Court for trial. If is not a contravention of such order. The order settling the issues does not deprive the surrogate at Trial Term of a control of the trial, and his further order transferring the trial of the issues to the Supreme Court is not contrary to the terms- of the original order for trial by jury, but supplemental or auxiliary thereto and in the orderly course of practice prescribed by the present code. There ought to be no genuine contention over such a plain proposition as this, and on the argument I understood all the counsel resisting the motion to 'assent to its accuracy. But, as I said for the reason stated, the proceeding for probate is not on at this- term.
It is next argued by counsel for the motioners that it is always • at any time in the discretion of either surrogate for this county, when sitting in this part, to make an order transferring.any contested probate proceeding, in which a jury is demanded, to the Supreme Court whether the proceeding is on the trial list, at that term or not. They also urge that this- motion now here is the' first invocation of the exercise of a discretion lodged in either surrogate and that such invocation can only be made at present at this Trial' Term of this court. It may be that this contention is entirely accurate. In any event I -am so impressed by its force that I have felt it my, duty not to remit this motion to my
Upon the merits of the motion I have no- hesitation in saying that if I were convinced that it was consistent with the better procedure in this court I should certainly grant it in common justice to the parties before me. It is only about the expediency of any such course at this time that T entertain a little doubt.
As regards the expediency of my making this order- let me point out that this is not a motion affecting a decree of a Surrogate’s Court. If it were, I should not entertain it for a moment. Decrees of a Surrogate’s Court are decrees in rem. By the public law decrees in rem are confided in by all the world, whether parties or not. Decrees in rem never should be disturbed unless for. the gravest causes .allowed by law. In respect of decrees in rem the surrogates of this county have eoequal jurisdiction- and responsibilities, and, although by reason of the fact that their respective offices were erected by separate acts of the legislature, there are some unsettled questions as to duties and powers in respect of other matters, these questions do not relate to decrees in rem or to the jurisdiction of this matter., If decrees made by one surrogate were to be' set aside by the other, 'the rightful authority of the court would be impaired. This is to be avoided. I have never disturbed a decree of this- court. In so far as is consistent with the rights of the parties, it is also true that a jurisdictional interlocutory order of one surrogate for this county should- not be disturbed by the other. I recognize this principle to the fullest extent. But if an order is not jurisdictional and is in express violation of the rights of the parties, it presents another question. In respect of nonjurisdictional orders which clog the wheels of justice the principle of comity may have no application. I remember when in the Supreme Court the orders of the late
This motion only -apparently conflicts with the comity desirable in courts of first instance. In point of fact this motion ■is not in conflict with proper comity. This- motion is- claimed by eminent counsel to be an invocation of a discretion lodged in either surrogate when at Trial Term. This discretion, it is claimed, has not been as yet exercised by either, and it can be exercised only at Trial Term. That is the whole controverted point now involved in this- particular motion. On the true construction of the new Practice Act for this court I am inclined to the contentions' presented by the counsel for the motion; but should I grant the' motion it might seem that I was infringing some order of my colleague, and this, in the interest of the- great business of this court, intrusted to two surrogates, is to be deprecated. Weighty public reasons (which I will not detail) compel me to avoid even the appearance of judicial discourtesy if I can properly do so in justice to the parties.
Before announcing my solution let me consider further for a moment another aspect of this motion. The order of my learned colleague for trial by jury in this proceeding was made at the chambers of this cofirt, pursuant to our Rule of Court No. VII. The history of this new rule is as- follows: Immediately after the passage of the new Surrogates’ Law my learned colleague-, in common with some other surrogates, felt that new rules- of court were imperative. With this view I did not concur. Consequently he felt constrained to publish his rules by himself. Rule No-. VII was one of the series which were first composed, published and promulgated by my learned colleague, or under his auspices, without my consent and on his sole responsibility. The publication of Rules of Court by one surrogate in
About Rule VII I am frank to say that, although I am now fully responsible for its final promulgation, I have long entertained some doubt as to its validity if it is construed to authorize a surrogate sitting -at Chambers to make the order it specifies. I think there is no power in the surrogate sitting at Chambers to order a trial by jury and frame issues in a contested' probate proceeding for trial by such jury. My doubt concerns the rule’s correspondence with the statute. If framing issues is a part of a trial or part of a probate proceeding, there is no power to interfere at Chambers with the trial, and the rule is pro tanto ultra vires. The provisions of the Code relating to the powers and duties of the surrogates for this- county were mandatory, jurisdictional and highly peculiar. Section 2506, Code of Civil Procedure, reads as follows: “ The term of that court held at the chambers shall dispose of all business except contested probate proceedings; all contested probate proceedings shall be disposed of at the trial term.” To my mind an order framing issues for trial in a contested probate proceeding is a p-art of the trial of the probate proceeding unless, perhaps, such issues are first framed for -a trial in the Supreme Court under section 2506, Code of Civil Procedure. In Chancery, in the trial of a suit in equity, involving the validity of a will,
But I do not as yet feel sufficiently confident in the accuracy of my own conclusions about some of the questions arising under the new act to be dogmatic. In view of the peculiar relations which courts of the surrogate now bear to the Appellate Division, I am inclined to place my decision on this- motion in such shape that it may be speedily presented .to that tribunal for that weighty determination which alone can give ease to litigants in this court and determine the proper practice for us to puys-ue. The powers of the Appellate Division in respect of the courts of the surrogates continue very like those- which were long exercised over the older courts of probate. I have remarked before that the modern legislation could- not have been unmindful of the old precedents. (Matter of Martin, 80 Misc. Rep. 17.) In any event as surrogate I have always been inclined to defer to the Appellate Division as the final repository of the powers and jurisdiction in a manner delegated, as it were, to- the surrogate pro hac vice.
After anxious consideration and much reflection I have concluded that it would be in the best interests of the court and of all concerned if I should for the present deny the motion, but without prejudice, and with leave to renew it at any time or place counsel choose after the Appellate Division have reached a conclusion on the merits of the appeal from my order. This may be very speedily accomplished if desired. In the meanwhile the trial of the contested proceeding for p-robate should, I think, be stayed. I will accordingly pro forma deny this motion for the present solely on the ground of my want of power under the new act to make the order sought. If I am held to have the power I shall then proceed to make the order.
Decreed accordingly.