#### Matter of the Probate of the Last Will and Testament of Robert H. Thompson, Deceased.

(Surrogate’s Court, Kings County,

December, 1911.)

Wills — Probate, establishment and annulment — Probate — Procedure — Production and examination of witnesses — Surrogate’s witnesses in Supreme Court.

The provisions of section 2818 of the Code of Civil Procedure, providing for the designation by the surroga/te of witnesses whose testimony he is satisfied may be material upon the probate of a will, are not applicable to a trial in the Supreme Court before a jury of certain specific questions embracing the matters essential to probate; and the surrogate hag’ no power to designate witnesses who must be sworn and examined on such a trial.

*34Proceeding upon the probate of a will.

Sparks & Puller, for Mabelle A. Thompson, contestant, for motion.

Brush' & Crawford, for proponents, opposed.

Ketoham, S.

. The surrogate’s decree refusing prohate has been' reversed on appeal; and a trial in the Supreme Court before a jury, of certain specific .questions embracing the matters essential to probate, has been ordered.

In preparation for such trial, and in reliance upon section 2618 of the Code of Civil Procedure, the contestant now asks the court to designate witnesses “ whose testimony the surrogate is satisfied may be material.” In a case governable by the section cited the effect of such designations is' that the contestant may, by notice, require the examination of such witnesses and that each of them must be examined, unless his testimony be dispensed with, upon proof of one or more of the grounds specified in section 2619 of the Code.

It thus results, as the courts have held, that, until all the witnesses 'named in such designation and notice shall have been examined or their testimony dispensed with, the will cannot be admitted to probate.

It has for years been the rule in this court that all the surrogate’s witnesses so called shall be examined as a prerequisite to any decree, if their testimony is available under the terms of section 2619, unless their examination be waived by all parties appearing. Though this rule receives ■no warrant from the statute, it is based upon the theory that the right to the examination of such witnesses is personal to each of the parties and may, therefore, be surrendered.

If the surrogate were obliged to grant the present motion, he would impose upon the trial of a case in another court á method of procedure which that court could not escape or modify. When the appeal from the decree of the surrogate was perfected, the probate' proceeding was removed to the appellate court; and the jurisdiction of this court was abated *35until it should he restored hy remittitur. Matter of Murphy, *79*App. Div. 541.

It is true that this court has received the remittitur by which it is advised of the order of reversal, under which the new trial is granted; but, in the case cited, it is held that the surrogate’s powers cannot" be restored by the mere transmission of the order of the Appellate Division reversing the "decree and directing a new trial before a jury, but that the final decision of the Appellate Division cannot be remitted *“*until the trial of the issue sent to the jury is completed.” . ' "

• It is, therefore, beyond the power of the surrogate to consider this application, and the same is denied.

Application denied.