11 Mills Surr. 356 | N.Y. Sur. Ct. | 1913
This is a contested proceeding for probate. The counsel for the contestants obtained an order pursuant to section 2618, Code of Civil Procedure, for the examination of about all the important witnesses, including the attesting witnesses, thus making such witnesses what are now known to the profession of the law “ surrogates’ witnesses.” The proponents have called to "the stand, examined the attesting witnesses to the paper propounded, and then announced that proponents rested. The contestants by their counsel then insisted that the other “ surrogates’ witnesses ” be examined before contestants be compelled to open their case. Counsel for proponents are unwilling to examine such witnesses, stating that such witnesses are really contestants’ witnesses and hostile to proponents. If these witnesses are in fact contestants’ witnesses then by the ordinary rules of evidence contestants would be compelled to call them to the witness- stand, with the effect that contestants would be bound by their testimony and not at liberty to impeach such witnesses. By placing all or nearly all
Several years back a similar situation developed in a probate proceeding in this court, although not so pointedly as in this matter now here. Matter of Hock, 74 Misc. Rep. 15, 25. In Matter of Hock the contestants of their own motion called the “ surrogates’ witnesses ” to the stand without reservation, thereby in effect, as was held, making such witnesses again contestants’ own witnesses and thus taking them out of the category of so-called “ surrogates’ witnesses.” In Matter of Hock the surrogate had occasion to review briefly the pertinent adjudications up to date and no further adjudications appear to be cited in the elaborate briefs now submitted to the surrogate in this matter. It is obvious that if all the witnesses in a con
It is always well to consider the contemporaneous conditions when the construction of a statute is involved. Prior to the independence of the Crown procedure in the probate tribunals of the province of New York was largely governed by the ecclesiastical common law and by the practice long observed in the ecclesiastical courts of England. Matter of Hock, 74 Misc. Rep. 26; Matter of Carter, id. 1, 7. This continued to be the case (Laws of 1778, chap. 12) for some time after the Revolution, or at least until the abolition of the Court of Probates in the year 1823 (Laws of 1823, chap. 70), when the ordinary probate jurisdiction devolved on the surrogates, before that time substantially representatives of the Court of Probates, which was then Ordinary. When the courts of the surrogates had become in fact independent tribunals, the surrogates began to vary the procedure before them, according to their own conceptions of modern and ancient law. Then, as was said by a surrogate of a century ago, there resulted as many courses of procedure in the courts of the surrogates as there were surrogates. ICirtland’s Treatise on Surrogates, 2. Fortunately the business before the surrogates was at that time merely common form business, and no great harm to the public ensued. Matter of Gedney’s Will, 142 N. Y. Supp. 158, 166, 167. The Re
Originally, as it will be remembered, the ecclesiastical courts of England and the probate courts of New York had no jurisdiction of probate of devises or wills of real property. The Revised Statutes, translating the provisions of earlier New York statutes, permitted devises to be proved in the courts of the surrogates. 2 R. S. 57, §§ 7, 8; 2 K. & R. 179, § 6; 1 R. L.
“ Surrogates’ witnesses ” were not known prior to section 11, chapter 460, of the Laws of 1837. Before the Revised Statutes proof of wills was at common law, either in common or solemn form. In order to obtain proof of wills in solemn form a “ caveat ” was filed in a book kept for that purpose. Proctor’s Practice, 68; Matter of Hock, 74 Misc. Rep. 25, 26. The provisions of the Revised Statutes relating to proof of wills seem, in the first .instance, to have had little reference to contentious probates, then very uncommon. As stated above, most of the business in the Surrogates’ Court of New York up to the time of the Revised Statutes had been what was known at common law as “ common form business ” and of no great complexity. In 1837 the legislature was obliged to supplement the Revised Statutes by a very important amendatory act, regulating more in detail both non-contentious and contentious probates. Laws of 1837, chap. 460. Section 10 of the act of 1837 provided for non-contentious probates. Only two of the attesting witnesses to a will need be examined if there was no contest. Section 11 provided as follows: “ In case the proof of any such will is contested and any person having the right to contest the same shall, before probate made, file with the surrogate a request in writing that all the witnesses to such will shall be examined, then all the witnesses to such will who are living in this state * ® * shall be produced and examined.” It is apparent to me that when the old practice by “ caveat ” had become obsolete or passed away a substitute for it was intended to be furnished by section 11 of the act of 1837. This and nothing more possibly was intended in the first instance, al
In 1841, by chapter 129, the legislature amended chapter 460, Laws of 1837, so as to make the notice and examination therein provided for “ apply to all witnesses whom any person interested in the proof of a will shall request to be examined, whether such witnesses be subscribing witnesses to such will or not; provided the surrogate * * * is satisfied that the testimony of the witnesses so requested to be examined is material.” Both the acts of 1837 and 1841 are now transferred without change to section 2618, Code of Civil Procedure. Matter of Hock, 74 Misc. Rep. 25, 26. The practice under the statutory provisions mentioned above has been several times before the courts of this state, with what effect will be subsequently considered. The act of 1841, as it will be observed, was only an enlargement of the provisions of the act of 1837, and it contains no internal evidence that it was intended to have a different effect from the act of 1837 on the prior procedure and practice in contested probates in the Surrogates’ Courts of this state.
It-has been since held that after a notice under the statutes in question, it is error on the part of the surrogate to admit the will to probate without examining the witnesses named in the notice, at least if the parties giving the notice to examine so require it. Matter of Baird, 41 Hun, 89, 93; Hoyt v. Jackson, 2 Dem. 443, 450; Matter of McGovern, 5 id. 424, 426. These decisions do not to my mind advance one particle the argument founded on the face of the statute itself. They are decisions which treat only of the proper practice to be pursued under the statute mentioned, and they go no further than mere matter of practice on the face of a statute. In Hoyt v. Jackson, 2 Dem. 451, as it will be readily perceived, the arguments of the very eminent opposing counsel, who were concerned in that cause, as to the proper practice to be pursued under the
I am still of the opinion that the intention of the acts of 1837 and 1841 was to bring about a probate in more solemn form than usually required on the probate of noncontested wills. In other words, the statute was intended to lead to a genuine contentious probate proceeding and it was not intended to revolutionize the ordinary procedure or law of evidence applicable in trials of issues of fact in probate causes in the Surrogates’ Courts, as was contended by counsel in Hoyt v. Jackson, 2 Dem. 452. But as section 11 of the act of 1837 was part of a reformatory act, it will be necessary to examine the entire scope of that act, now largely reassembled in chapter 18 of the Code of Civil Procedure relating to probate, in order to determine the true meaning of the acts of 1837 and 1841, now become section 2618, Code of Civil Procedure.
The act of 1837 was a very comprehensive revision of the
The duties and obligations of a surrogate in respect of testamentary scripts entitled to probate are not in the first instance those of the ordinary common. law judge or purely judicial. Measurably, this was so in the old law, and the old law governing probate courts has in some particular been only reinforced or declared by modern statutes. In Matter of Meyer, 72 Misc. Rep. 566, 569; Matter of Carter, 74 id. 1, 6; Matter of Swartz, 79 id. 388; Matter of Gedney, 142 N. Y. Supp. 157, and in Matter of Martin, 80 Misc. Rep. 17, I gave some little consideration generally to the powers and duties of modern surrogates in the existing judicial system of this state. In Matter of Meyer, for convenience, I classified the surrogates’ powers and duties as judicial, administrative and inquisitorial. The inquisitorial powers were there stated to be at present statutory in origin. Inquisitorial powers are conferred on the surrogate whenever a particular inquest is directed by the statute to be made by the surrogate for his own informa
It is with reference to the powers and duties indicated in the
Having now given the history and construction of section 2618, I come to the practice questions submitted to me: Should I direct the proponenb to examine the surrogates’ witnesses against their will, as requested by contestants’ counsel, proponent having rested after making prima facie proof of factum? It was the opinion of Mr. Surrogate Rollins, generally acknowledged to have been a powerful judge of this court, that he could require counsel for the parties cited on the contested probate to assist him in the examination of the surrogates’ witnesses. Hoyt v. Jackson, 2 Dem. 457. I think, how
This being so, the next question presented for our consideration is, on whom does the duty rest to examine “ surrogates’ witnesses ? ” I have no doubt on this score, for it is determined both by statute and authority binding on me. Code Civ. Pro., §§ 2618, 2622. As surrogates’ witnesses” are part of the statutory inquisition mentioned before, and the information derived from them is solely for the surrogate’s own conscience, it is the duty of the surrogate himself to examine “ surrogates’ witnesses,” but only to such an extent as will satisfy him of the genuineness of the will and the validity of its execution. Matter of Baird, 41 Hun, 93; Hoyt v. Jackson, 2 Dem. 457; Matter of McGovern, 5 id. 426. Thus far and no farther is it contemplated that the surrogate’s independent inquiry shall extend. The surrogate is not bound, and indeed ought not, to interrogate the “ surrogates’ witnesses ” in support of affirmative pleas set up by contestants, such as undue influence and fraud. When the surrogate has himself inquired of “ surrogates’ witnesses ” concerning their knowledge of the testamentary paper, the act of testamentation and the other elements going to make up wh'at is technically called “ factum,” all the parties in court or cited have a right to cross-examine the witnesses. Such a right of cross-examination inheres in any party under our law on any inquisition or proceeding (except on the grand inquisition of the county) if testimonial evidence is given in an issue of. fact. But it would, I hold, be a great error and subversive of orderly procedure on a trial of an issue of fact to
Decreed accordingly.