#### Matter of the Probate of the Last Will and Testament of Mauritz F. H. de Haas, Deceased.

(Surrogate’s Court, New York County,

July, 1898.)

Surrogate’s Court — Power over judgment oí the Supreme Court — Code Civ. Pro., § 2585.

A will was probated and a decree entered which construed the will adversely to a contestant; that decree was reversed on appeal upon a question of fact alone; a jury trial, then ordered, was had of the question of fact of the execution of the will and the verdict was in favor of such execution. A judgment was thereupon entered at Special Term, admitting the will to probate and also adjudging that the judgment be remitted to the Surrogate’s Court for further proceedings to carry it out. The judgment was made the judgment of the Surrogate’s Court by order of that court and, on an appeal therefrom, was affirmed by the Appellate Division. The latter appeal did not however involve the question whether it was regular to enter the judgment before the appeal from the original decree, on the question of construction,, had been decided by the Appellate Division. Upon an application in the Surrogate’s Court for the entry of. a decree upon the judgment of the Supreme Court and again after the affirmance of the judgment of the Supreme Court, the contestant asked that the clause, construing the will adversely to her and contained in the original decree of the surrogate, be inserted in the decree embodying the judgment of the Supreme Court.'

Held, that although there had, in fact, never been any construction of the will by the Supreme Court, the surrogate had no power, under section 2585 of the Code of Civil Procedure as amended in 1895, to alter the decree which the Supreme Court had directed should be entered in his court. What relief might hereafter be given in the matter considered.

Proceedings upon probate of a will.

Preble Tucker, for petitioner.

Jacob S. Van Wyck, for contestant.

Fitzgerald, S.

The will of the decedent was admitted to probate after a contest thereof by the present applicant, and the decree which was entered, establishing its validity, contained an adjudication construing its provisions adversely to her claim and con*259tention. The decree was reversed upon appeal upon a question of fact, and a trial of the issue of fact as to the execution of the will was directed to be had at the Trial Term of the Supreme Court with a jury, pursuant to section 2588 of the Code of Civil Procedure. The trial resulted in a verdict in favor of the due execution of the will. A judgment was entered at Special Term of. the Supreme Court upon the verdict, admitting the will to probate, decreeing that letters of administration, with the will annexed, issue to those entitled to them on proper application therefor, and adjudging that the judgment be remitted to the Surrogate’s Court for further proceedings to carry it out, and to make it the judgment of the Surrogate’s Court. It was so made by an order of this court, and thereafter the judgment of the Supreme Court was, on the appeal therefrom, affirmed by the Appellate Division. This appeal did not involve any question as to the regularity of the practice in entering the judgment before the appeal upon the question of construction had been disposed of by the appellate court. Upon the application for the order or decree which was entered in this court upon the judgment, the moving party herein sought to. have inserted in such order or decree the clause construing the will which was contained in the decree of this court which had been reversed. The surrogate declined to make the insertion. The applicant has now, since the affirmance of the judgment of the Supreme Court, renewed his motion for the modification of the order which the surrogate entered upon such judgment, by embodying therein the clause mentioned. . The appeal which was taken from the decree of the surrogate questioned the, correctness of the decision embodied in such clause, as well as the decision in respect to the validity of the execution of the will. While the appellate court has made no determination respecting the correctness of the decision of the surrogate in construing the will, still I have no doubt that the reversal of the decree, notwithstanding it was upon a question of fact, rendered inoperative the decision and left the question af-. fected by it wholly undetermined. The inquiry now is whether such question can, in view of the proceedings which have been had in the Appellate Division and at the Special Term, be reconsid' ered by this court, and the results of such consideration or of the determination previously made by the surrogate be somehow embraced in a judgment or decree of which the parties in interest can avail themselves for the purpose of appeal or otherwise.. The law in force' at the time of the passage of the Code "of Civil Procedure, *260and-which was superseded by it, provided that the final determination of the issue tried by a jury pursuant to the order of the appellate court reversing a decree of the surrogate admitting a will to probate or rejecting .it, should be certified to the surrogate, and he was required, where the determination was in favor of the validity of the will, to record or admit it to probate, as the case might be; and where it was against its validity, he was required to annul and revoke the record or probate thereof. § 98, part 3, chap. 9, title 3, 3 E. S. (6th ed.) p. 896; §§ 59 and 60, part 2, chap. 6', title 1, 3 E. S. (6th ed.) p. 70. The practice under this procedure seems to have been for the surrogate to admit or reject the will in accordance with the verdict after it had been certified to this court. Nichols v. Romaine, 3 Abb. Pr. 122; Webster v. Cole, 17 Hun, 510; see order of General Term in case on appeal in Marvin v. Marvin, 3 Abb. Ct. App. Dec. 192; Matter of Campbell, 48 Hun, 417; Whitbeck v. Patterson, 22 Barb. 83. In Webster v. Cole and in the Marvin case, the court was of the opinion that the motion for a new trial after the verdict should in the first instance be made at the General Term, and in these cases, the General Term, after the disposition of the questions arising upon the motion for a new trial, remitted the proceedings direct to the surrogate. If the procedure established by the Eevised Statutes has been in substance and effect re-enacted and. continued in force by the Code, it might be that upon the certification hither of the verdict or upon an -application to the appellate court therefor, the moving party here might obtain relief; in the former case by the inclusion in the decree to be entered by the surrogate admitting the will to probate of a decision of the question of construction, which might thereafter be reviewed on appeal, or in the latter by. the review ■ by the appellate court of the decision of that question contained in the decree which has been reversed. Section 2624 of the Code of Civil Procedure, which provides for the construction of a will of personal property upon rendering á decree admitting it to pro- . bate, might possibly afford sufficient warrant for the course first suggested,, although this is very unlikely. The provisions of the Eevised Statutes above cited were repealed prior to the enactment of- chapter 18 of the Code of Civil Procedure, which contains section 2588. This section, Throop, in his notes, says is a consolidation of the provisions mentioned, but so amended as to give them a more extended application, .while providing for the granting of a new trial after the verdict. Section 2588 is silent as to. the -prac*261tice to be followed in a case where no motion has been made for a new trial, or where such a trial has been denied or a final verdict rendered after new trial has been granted. The following cases hold that under this section the final verdict should, as under the Revised Statutes, be certified direct to the Surrogate’s Court, where judgment thereon is to be entered. Matter of Campbell, 48 Hun, 417; Matter of Hatten, 22 Abb. N. C. 66. It is intimated, although not decided, in Matter of Budlong, 54 Hun, 138, that the motion for judgment upon the verdict might be made in the Surrogate’s Court or in the court in which the trial was had. Section 2585 of the Code, as it stood before its amendment by chapter 946 of the Laws of 1895, provided that an appeal to the Supreme Court from a decree or order of the Surrogate’s Court must be heard, the judgment or order made thereupon must be entered and the papers must be filed in the same manner, and the effect of the judgment with respect to the proceedings in the Surrogate’s Court is the same as where an. appeal is taken to the Supreme Court, from a final judgment,, or an order of an inferior court, as prescribed in title 3 of chapter 12. This title contains, among others, section 1345, which is the only section here pertinent. It provides for the entering of judgments and orders and the filing of judgment-rolls on appeals from inferior courts with the county clerk, and the making of such filing and entry the authority below for any proceeding which the judgment or order of the appellate court directs or permits. These sections in their application to appeals from Surrogates’ Courts might, so far as they pertain to probate proceedings, be claimed to relate solely to cases where the judgment is entered upon the final determination of the appellate court in affirming or reversing a decree of the surrogate upon a question of law. The last paragraph of section 2587, in respect to enforcing the decree or order appealed from, and the sections which Throop specifies as those which are referred to by the. paragraph, are in harmony with this claim. This view is furthermore to some extent supported by Throop’s statement that the adoption of section 2585 rendered unnecessary the re-enactment of section 97, part 3, chapter 9, title 3, of the Revised Statutes, which prescribed the subsequent proceedings upon the affirmance or reversal of a probate decree upon a question of law. Despite the implication contained in Throop’s notes of the restriction of the application of section 2585 in the manner intimated, it might very well be that, for the purpose of uniformity of practice, the section was designed to cover cases arls*262ing under section 2588, as well as other cases. If so, and if, notwithstanding this change, the matter after the rendition of the final verdict should properly be returned to the tribunal that reversed the decree and ordered the trial of the issues, -as was indicated in Marvin v. Marvin, above cited, to be the practice prior to the adoption of chapter 18 of the Code, in a case where further action after the verdict was necessary before the transmission of the proceedings to the surrogate, a review by such tribunal of the decision of the surrogate.in construing the will might be obtained and the result of its determination embodied in a judgment, as prescribed in section 2585. In the Matter of Patterson, 63 Hun, 529, it was held where the trial was had in the Court of Common Pleas pursuant to the order of the General Term of the Supreme Court, made under section 2588,-that the verdict should have been certified to- the Supreme Court for further proceedings thereon, and that the subsequent orders and decrees in the proceeding prior to the remission1 of the proceeding back to the Surrogate’s Court must be those of the Supreme Court. It was further held that the judgment containing the judgment of the appellate court is to be entered pursuant to section 2585, in .the office of the county clerk. Matter of Moss, 86 Hun, 618, decided what the Patterson, case failed to clearly indicate, that the motion for judgment upon the verdict should be made at the Special Term. This practice was followed in McKinley v. Lamb, 64 Barb. 199, where, however, no question of its correctness was raised. In the Matter of Clark, 40 Hun, 233, the court held that a motion for a new trial after a verdict upon the trial'of an issue of fact, pursuant to section 2588, should be made at Special Term. In the Patterson case it was furthermore declared that the sole authority which the surrogate has for his Subsequent action in a case like the present one is derived from the judgment-roll' filed with the county clerk, and that the whole proceeding, after an appeal is taken, becomes a proceeding in the Supreme Court, and remains there until formally remitted to the surrogate. It is not improbable that resort herein might have been had,. as previously suggested, to the appellate court for a hearing of the question that has occasioned this motion, . before the entry of the judgment upon the verdict; and the decision thereof be incorporated in the judgment at the Special Term. Possibly, as was also hereinbefore intimated, judgment might be entered in conformity with the verdict of the jury, which might in some way provide for the insertion by the surrogate in the de*263cree to be entered pursuant thereto of his previous decision or a new one, which might be the subject of review. The incongruity and illogicalness of this course, and the seeming absence of any precedents countenancing it, would doubtless be an obstacle to its adoption. The procedure so far considered is that which existed anterior to the amendment of section 2585 by chapter 946 of the Laws of 1895. The decree which was appealed from herein was made after the adoption of the amendment, and the effect of - such amendment upon the previously existing procedure and of the practice to be followed in a case like that now under advisement, will now be considered. Section 2585, as it has stood since its amendment, declares: “ In the appellate division of the supreme court the order made upon an appeal from a decree or an order of a surrogate’s court must be entered with the clerk of the appellate division, and a certified copy thereof annexed to the papers transmitted from the court below upon which the appeal was heard, must be transmitted to the court from which the appeal was taken, and the court below shall enter the judgment or order necessary to carry the determination of the appellate division into effect.” It will be observed that no reference is now made in the section to chapter 12, title 3, which it referred to before the amendment. In this title, especially in section 1345 thereof, the court in the Patterson and Moss cases found warrant for holding that in a case of this sort* a judgment should be entered in the Supreme' Court and the judgment-roll filed with the county clerk. Simultaneously with the amendment of section 2585, sections 1340 and 1345 of title 3 were also amended. ■ The amendments, however, are of such a character, so far as they relate to the matter in hand, as not t.o materially change the two last-mentioned sections. This being" so, and it appearing that the reference in section 2585 to title 3- was the only authority for applying any of the provisions of that title to appeals from this court, the repeal of the provisions containing such reference and the adoption of the amendment of section 2585 would seem to make the procedure established by the amendment applicable to the present case,'and to all other cases of appeals from this court. If the effect of this amendment be such as I have conjectured, it .would have enabled the applicant here to seeme a review of the question of construction by the appellate court after the rendition of the verdict of the jury. In the present instance, where the appeal was heard and determined after the passage of the amendment just mentioned, the practice pursued was that indicated *264by the decisions in the Matter of Patterson and the Matter of Moss, which were made previously to the adoption of such amendment. The entry of the judgment in the Supreme O'ourt seems to have been made in accordance with such practice. It may be, although I hardly think this probable, that the right to review a question of construction of the will in a probate proceeding does not extend to cases where, as here, the will has been admitted to probate as the result of the verdict of a jury and the action of the appellate court thereon, but is confined to those cases where probate'of the will has been adjudged by the surrogate upon the trial before him and his' judgment has not been disturbed. How this may be, or whether the practice pursued herein was proper, I do riot think it is for me to decide. The order in question was entered in strict accordance with the judgment of the Supreme Court, and in view of the holding of the court in the Matter of Patterson, that the judgment of the Supreme Court is the sole authority for the subsequent action of the surrogate in a matter of this nature, I do not feel at liberty to modify the order. Should it, however, turn out that the applicant has, in effect, been deprived of the opportunity of obtaining a construction of the will at this time, owing to the inability of the appellate court to entertain the matter because of its disposition of the appeal and of the subsequent proceedings thereupon had, I do not think that she would be entirely remediless. As an incident to effecting a "settlement and distribution" of the estate upon the* accounting of its representative, she would, doubtless, be given an opportunity of having the question' which has occasioned this motion considered, if it shall not have been previously disposed of.

■ Application denied.