#### In the Matter of Proving the Paper Alleged to be the Last Will and Testament of Henriette Swartz, Deceased.

(Surrogate’s Court, New York County,

February, 1913.)

' Wills — execution of, under mistake as to legal effect of certain trust deeds — probate of.

Where parts of a will were duly executed under a mistake as' to the legal effect of certain trust deeds executed by testatrix to which reference was made in the will, the instrument cannot be refused probate.

In the proceedings for probate the respondents ask for a construction of the will pursuant to section 2624, Code of *389Civil Procedure. The pertinent portions of the will of Mrs. Henriette Swartz, for the purpose of construction, are as follows :

■ " *Tenth.*I give and bequeath to my daughter, Annie S. Lyon, the sum of five thousand ($5,000) dollars, to be hers absolutely, and I direct my executrices and executor, hereinafter named, to pay the said sum to her at the earliest possible moment after my decease.

*“Eleventh.*I give and bequeath to my daughter, Emily S. Andrews, the sum of seven thousand ($7,000) dollars, to be hers absolutely, and I direct my executrices and executor, hereinafter named, to pay the said sum to her at the earliest possible moment after my decease.

“ *Twelfth.*I give and bequeath to my daughter, Priscilla S. Eisenhach, the sum of one thousand ($1,000) dollars, to be hers absolutely, and I direct my executrices and executor, hereinafter named, to pay the said sum to her at the earliest possible moment after my decease.

" *Thirteenth.*Whereas on the 26 th day of April, 1904, by a certain instrument in writing, I have paid over to my son in-law, Lester J. Saul, as trustee, the sum of seven thousand ($7,000) dollars in cash; and whereas on the 28th day of October, 1905, by a certain instrument in writing, I have paid over to my son-in-law, Lester J. Saul, as trustee, the additional sum of three thousand ($3,000) dollars, making the sum ten thousand ($10,000) dollars in all; and whereas the said instruments provide that the said sum of ten thousand ($10,000) dollars is to be invested, reinvested and kept invested by my said son-in-law, Lester J. Saul, as trustee, and the net income therefrom paid to me by my said trustee during the term of my natural life; and whereas the said instruments provide further that upon my death my said trustee is to divide and apportion the said sum of ten thousand ($10,000) dollars amongst my surviving daughters; now I hereby direct that instead of the said sum of ten thousand ($10,000) dollars being divided amongst my surviving daughters, as provided in said instrument, it be divided by my said trustee into two equal parts of five thousand ($5,000) dollars *390each; five thousand ($5,000) dollars thereof to be paid to my daughter, Eebecca S. Saul, and five thousand ($5,000) dollars thereof to be paid to my daughter, Priscilla S. Eisenbaeh; for the reason that in paragraph *‘*fourteenth,’ hereafter, I am making provisions for my daughters Annie S. Lyon and Emily S. Andrews in lieu and in place of their interest in the said fund of ten thousand ($10,00.0) dollars, in which I direct that they shall not share or participate.

“ *Fourteenth.*All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed or to which I may he entitled at the time of my death, I give, devise and bequeath in equal shares to my daughters, Annie S. Lyon and Emily S. Andrews, or to the survivor of them, to be their or hers absolutely, and this provision is made for my said' daughters, Annie S. Lyon and Emily S. Andrews, in lieu of and in consideration of their or her non-participation in the fund directed to be distributed by paragraph ‘ thirteenth ’ heretofore.

*“ Fifteenth.*Should any of the bequests made by me in' the foregoing paragraphs of this my will lapse or fail for any reason I direct that the bequest or bequests so lapsing or failing, except where other provision is made, shall go to and form part of my residuary estate and be disposed of under and in accordance with the provisions of paragraph *‘*fourteenth ’ heretofore.

“ *Sixteenth.*The reason that I have made a greater provision for my daughter Emily S. Andrews than for my other daughters is not that I bear her any greater love "as a mother, but realizing that she is a widow and is without a husband’s support, which my other daughters enjoy, it is not my wish to leave her in a dependent position.”

On the hearing the parties put in evidence, without objection, the two trust deeds or instruments referred to in the thirteenth clause of the will. It was conceded that the value of the estate was approximately $25,000, exclusive of the $10,000 covered by the trust deeds, and deducting therefrom the specific legacies of $13,000, the residuary estate is worth *391approximately $12,000, subject to deductions for expenses of administration and possible debts not believed to be large.

Phillips, Mahoney & Wagner (Jeremiah J. Mahoney and Warren C. Fielding, of counsel), for petitioner.

Cardozo & Nathan (Edgar J. Nathan and Raymond Rubenstein, of counsel), for respondent Annie L. Lyon.

Simpson & Cardozo (Benjamin N. Cardozo and Walter H. • Poliak, of counsel), for respondent Priscilla S. Eisenbach. .

Fowler, S.

This is an appeal to the jurisdiction of the surrogate for relief against an alleged mistake on the part of the testatrix. It involves the whole scope of the surrogate’s present jurisdiction in a proceeding for probate and construction. The arguments of counsel in this cause suggest to my mind important questions the consideration of which can no longer be postponed or passed over by me. The arguments of counsel have been unusually thorough and profound. *Prima facie*the script propounded as a will in this matter is, on the proofs of its execution, given under oath, entitled to probate. *Factum*of will, in other words, is established. This is conceded by all the counsel in the cause. But in a rather vague way, notwithstanding this attitude, the effect of a part of the will is sought to be rejected from probate. A mistake is alleged on the part of the testatrix, and this is made the basis of an opposition to the probate of the thirteenth and fourteenth clauses of the will propounded. This appeal is addressed to the powers of the surrogate sitting as a probate judge, and not to his power as a court of construction under section 2624, Code of Civil Procedure.

The powers of the surrogate as a court of probate are due primarily to the statute. Code Civ. Pro. § 2472. The section is very general in phrase. It confers jurisdiction on the surrogate “To take the proof of wills; to admit wills to probate.” The statute does not. define “ proof of wills ” or “ probate,” and such definition and the powers of the surrogate, in probate matters are referable to the jurisprudence *392established in this state by the Constitution itself. Code Civ. Pro., § 2481, subd. 11. See Matter of Work, 76 Misc. Rep. 403, 405; Matter of Connell, 75 id. 574, 578; Matter of Carter, 74 id. 1, 6; Matter of Meyer, 72 id. 566, 568, but more particularly the authorities cited in these cases. Were these judicial powers not so defined the surrogate’s powers and procedure in proceedings for probate would be left much too vague. A surrogate was not intended in probate proceedings to be a law unto himself, but to proceed according to established precedents, and with reference to the general law imposed by the Constitution of the state. Campbell v. Logan, 2 Bradf. 90, 93; Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 70, 74; Jones v. Hamersley, 4 Dem. 427; Matter of Carter, 74 Misc. Rep. 1, 7; Dayton Surr. Pr. 9; Redf. 26; Jessup Surr. Pr. 5.

Long prior to any statutes conferring on surrogates those powers incidental to courts of construction it was held by Surrogate Bradford that the surrogate as an incident of his probate jurisdiction had power to refuse probate to part of a will if fraud or mistake was established. Burger v. Hill, 1 Bradf. 360; confirmed by Hill v. Burger, 10 How. Pr. 264. This notable decision of this very learned probate judge has been much objected to in several states while followed in others. Right or wrong, the decision in Hill v. Burger is binding on me. It may be remarked that such power is distinctly recognized in the law which is commonly taken as the exemplar of our own authority in cases of doubt and difficulty not settled by the law and practice of this state. Allen v. McPherson, 1 H. L. 191; Goods of Duane, 2 S. & Tr. 590; Goods of Oswald, L. R. 3 P. D. 162; Morrell v. Morrell, L. R. 7 P. D. 68, 1882; Plume v. Beale, 1 P. Wms. 388; Billinghurst v. Vickers, 1 Phill. 187. Cases in the Ecclesiastical Courts of England, although decided since our independence of England, are still of some indirect authority here. The foreign law of probate, like the foreign law relating to notaries or to admirality matters, stands on a different foot in this court from other foreign law, by reason of the similarity and universality, of operation *393of probate law, probate being a proceeding *in rem.*Betts v. Jackson, 6 Wend. 183, 202. It would be quite at variance with propriety for me to express my own opinion on the power of the surrogate to refuse probate to a part of a will in view of the decision in Hill v. Burger, although I am free to say that I should never be inclined to stretch the jurisdiction of this court beyond the most well defined limits. Matter of Meyer, 72 Misc. Rep. 566. But within those limits I should be tenacious of my jurisdiction. A jurisdiction is not for the benefit of a judge, but a matter of public concern which demands the greatest consideration, and for that reason only the surrogate should not be slow to assert and protect his jurisdiction.

That a court of probate has no power incidental to its general probate jurisdiction to add words to a will, even if omitted by mistake, is often asserted. Theobald Wills, 29; Mortimer Probate Law, 103; 1 Jarman Wills (6th ed.), 486; Burger v. Hill, 1 Bradf. 374; Creely v. Ostrander, 3 id. 107. While this is generally true, these statements all appear to have overlooked a decision to the contrary in White v. Barber, in the year 1771, 5 Burr, 2703. This case before the Revolution is binding here. Oastell v. Tagg, 1 Ourteis, 298, proceeds to the same point, and there are others to the same effect. A power to strike out a will *prima, facie*would seem to imply a correlative power to insert proper words sometimes omitted by mistake. But much depends on the Statute of Wills for the time being in force. Matter of Goods of Wilson, 2 Curteis, 853. But as this particular point is not now here, it need not be considered at this time.

The correction of the alleged mistake of this testator is not addressed to the jurisdiction committed to the surrogates of this state by section 2624 of the Code of Civil Procedure. It may be well, in passing, to consider the general scope and purport of that section. By reference to it it will be perceived that it is only after a will is determined to be entitled to probate that the surrogate may sit as a court of construction. It is true that the *factwm,*of will may be formally adjudged by the same decree which construes the will so *394found entitled to probate, but the adjudications rendered in the separate spheres of jurisdiction are nevertheless distinct acts of the surrogate. Matter of Davis, 182 N. Y. 475. The validity, construction or effect of any disposition contained in a will of a resident of this state when entitled to probate may now in a proper case be determined by the surrogate sitting as a court of construction, but not as a probate judge. Code Civ. Pro. § 2624. The precise extent of the jurisdiction of the surrogate as a court of construction is nowhere defined. Consequently we must look to the law of this state regulating similar jurisdictions. Betts v. Jackson, 6 Wend. 183; Matter of Carter, 74 Misc. Rep. 1, 7; Matter of Matthews, 75 id. 449, 453. The measure of the surrogate’s jurisdiction as a court of construction will be found either in the jurisdiction of the courts invested with equitable powers or that of the courts proceeding according to the course of the common law or both. It cannot be maintained for an instant, I think, that a court of law ever entertained a jurisdiction to correct a mistake in a devise. The exercise of power of a court of law over devises was confined, whether in ejectment actions or otherwise, to the single issue of *devisavit vel non.*Common law jurisdictions related wholly to legal titles under wills or to matters *in pais.*Mistakes were *prima facie*of equitable cognizance only. As nothing is to be found in the constitution of courts of law, we must next resort to the law regulating the jurisdiction of courts vested with powers of construction over wills for the necessary limitations on the powers of the surrogates.

The extent and the exercise of the jurisdiction of the surrogate as a court of construction are controlled either by' the new section 2624, Code of Civil Procedure, or by the decisions of our own state, or in the absence of such decision by the law imposed on us by constitutional limitation. So clear a proposition needs no citation of authority. The power of courts of equity over wills is referable to the want of jurisdiction of courts of law, but more particularly to their jurisdiction over mistakes and trusts. For this purpose executors have been regarded in equity as trustees. *395Story Eq. Juris., §§ 164, 1067. By a “ court of construction ” a court of equity is intended. Burger v. Hill, 1 Bradf. 372. In regard to mistakes in wills there is no doubt that courts of equity had jurisdiction to correct them in some instances to be hereafter noticed. 1 Jarman Wills (4th Am. ed), 359, note. But the power of equity, independent of statute, to construe wills is referable to a jurisdiction over trusts, and where no trust is involved jurisdiction is generally to be declined. Dill v. Wisner, 88 N. Y. 153, 160; Matter of Keleman, 126 id. 73; Mellen v. Mellen, 139 id. 210, 217; McKinlay v. Van Dusen, 76 App. Div. 200.

A court of equity would in no case correct an erroneous supposition of the testator if he knew the contents of his will. Burger v. Hill, 1 Bradf. 372; Walpole v. Cholmondeley, 7 T. R. 138, s. c. Lord Walpole v. Lord Orford, 3 Ves. 42; Matter of Bywater, 18 Ch. D. 17. The earlier editions of Jarman on Wills review the English cases on this point, although the sixth edition omits them. 1 Jarman Wills (4th ed.), 353-359. The language of section 2624, Code of Civil Procedure, invests the surrogate' with a larger jurisdiction over the construction, validity and effect of wills than that formerly possessed by courts of equity I have no doubt. Matter of Mount, 185 N. Y. 162, 167. Ho trust or mistake need be involved in order to invoke the jurisdiction granted to the surrogate, and he may now pass on the validity of legal as well as of equitable titles derived under the will before him. Matter of Mount, *supra.*But this at bar is not a case of construction, but of probate law only.

That the surrogate may under section 2624, Code Civil Procedure, sometimes consider oral or extrinsic evidence in a proper case, in order to enable him to construe or determine the validity of a will is, in my mind, not open to doubt, and I shall remain of this opinion until directly advised to the contrary by my superiors in the appellate courts. Unless the surrogate has power to consider extrinsic evidence in a proper case of construction, falling under section '2624, the beneficial effect of that section will be nullified. The surrogate’s jurisdiction of construction will in that event be con*396fined to the single issue of validity or invalidity on the face of the testamentary scripts probated in the proceeding. He will be unable to consider an ambiguity or uncertainty raised by extrinsic circumstances and removable in any other court of construction by extrinsic evidence. The few adjudicated cases bearing on this section cannot be taken to intend to restrict a jurisdiction so plainly conferred on the surrogate by the legislature. See Matter of Keleman, 126 N. Y. 73; Morton Trust Co. v. Sands, 195 id. 28. Such decisions do not cover the hypothetical case. The surrogate has all the powers fairly implied in the grant of jurisdiction.

But the point here is that section 2624, Code Civil Procedure, is not an authority for the surrogate’s jurisdiction to construe the offensive clauses out of the will. If any relief is to be granted-by the surrogate it must have reference to the power of the surrogate as a probate judge. In this view section 2624 of the Code of Civil Procedure becomes quite immaterial and is outside of consideration in this matter now before me. This is not a case of construction, and construction is not properly invoked or involved. Jones v. Hamersley, 4 Dem. 437; Matter of Mount, 185 N. Y. 162, 167. It is possible that a court of equity may consider some form of relief for discrepancies apparent on the face of the will as proved, taking into just consideration the claims of those entitled also under the trust deeds. But such matters are not properly cognizable here (Milner v. Milner, 1 Ves. Sr. 106), and their consideration should not be volunteered.

Formerly and at present the only remedy in cases of mistake on the face of a will is in a court of probate. 1 Jarman Wills (6th ed.), 493, and cases there cited; Burger v. Hill, 1 Bradf. 372, 373; Allen v. McPherson, 1 H. L. 191. If such will is admitted to probate there is no remedy in any other court. Berger v. Hill, 1 Bradf. 373.

While I think that the parties before me may have by the course hitherto taken virtually put themselves out of court and technically assented to the probate of the script propounded, and in consequence I might be relieved from any further consideration of this matter, yet this is too *397technical. It is not too late for them, I think, to object to the probate of parts of this will by reason of the alleged mistake. I shall assume that this is their desire and will now proceed to the consideration of the merits of this controversy. It may be assumed that it is discernible on the face of the will that the testatrix mistook the legal effect of the trust deeds referred to by her in the thirteenth clause of her will. Does that fact, if established, enable the surrogate to refuse probate to the tenth and fourteenth clauses of a will duly executed under such mistake? That is the only question in the cause. If the mistake is of that character which may be corrected by a court of probate, only that part of the will entitled to probate will be annexed to the decree of probate. Billinghurst v. Vickers, 1 Phill. 187; Wood v. Wood, id. 357; Matter Goods of Duane, 2 Sw. & Tr. 590; Burger v. Hill, 1 Bradf. 373; Creely v. Ostrander, 3 id. 107; Strahan Wills, 68; Matter of Finn, 1 Misc. Rep. 280, 283. This is not a case of dependent relative revocation, and that doctrine invoked by counsel has no application. This is the case of an alleged mistake on the part of testatrix and its legal effect on probate alone.

While I am bound to hold, in view of the decisions of this state already noticed, that there are some kinds of mistake on the part of testatrix, such as mistakes of draftsmen in preparing wills or of engrossers in the engrossment of the same, or mistakes induced by fraud on testators which may possibly be corrected in this court in a proper case, yet the mistake of this testatrix concerning the legal effect or revocability of her trust conveyances is not such a mistake as can be corrected here. The same point is adjudged in England. In bonis Davy, 1 Sw. & Tr. 263; Guardhouse v. Blackburn, 1 P. & D. 109; Harter v. Harter, 3 id. 11; Collins v. Elstone, 1893, P. 1; Beamish v. Beamish, 1894, 1 Ir. 7; Theobald Wills, 719. The true principle applicable in this cause is, as I conceive, well stated in the sixth edition of Jarman on Wills, 486, and in this cause that passage has my approval: *“*If, however, the testator knows the contents of his will and erroneously supposes that it will not have the effect which the law gives it. *398the general rule applies and evidence of his real intention is not admissible.” In other words, such a mistake as that here alleged is not the basis of a correction by a court of probate. The cases of established intention of testators to make wills other than those actually made are not to be mistaken for cases where testators have placed in their wills just what they intended, but with effects different from those which they intended. The latter class of mistakes is not remediable in a court of probate under the existing Statute of Wills. This case belongs to the latter class.

The principle of all the American and English adjudications hearing on the point before me has now been briefly considered. It remains to consider two remarkable instances cited from the Roman Law in the very elaborate argument of the learned counsel for Mrs. Eisenbach. I may remark that there are many occasions in this court when it is held that the Civil or Canon Law well serves to illustrate a derivative principle frequently applied in this court, or, in the total absence of modem authority, as a guide for this court. I referred to the authorities on this point in my judgment on the Will of Van Ness, 78 Misc. Rep. 592. But I fear the instances now cited by the learned counsel in this matter are not within the limitations there stated. Let us examine them. In the Latin of counsel’s argument, the first instance is taken from the *de Orutore of Cicero*(1, 38, 175) as follows: *“ Pater credens filium swum esse mortamm alterwm, institidt haeredem; filio domum*redewnte, *hujus institutionis vis est*nullaI do not find the exact quotation in the *de Orutore.*But the case is there mentioned in other words not materially different. On its face this case would appear to be addressed to a mistake of fact by a testator and to be very much in point here, but it is not so. Cicero, it will be observed, does not furnish us with the judgment in the case. The judgment is, however, given by Valerius Maximus (VII. 7, 1). The son in question was a soldier, and he succeeded in the case. By the merest chance I happened to have read in a late book a discussion on this very case or I should know little of it. Girard Manuel de Droit Romain, 853 *et seq.*The case in Cicero did not turn at all on a mistake of fact on the part of testator, but on the law relating to the exherison of a *399son. At that time a son was a sort of joint proprietor with the father. It was a case of *condominium*and unlawful for the father to disinherit a son. It was on that ground the judgment proceeded, and not on the ground of a mistake of fact of the testator. The second instance cited to me by counsel is taken from the Digest (28, 5, 92). In the language of counsel for Mrs. Eisenbach this case is as follows: *“A*striking case on revocation under a mistake is stated in the Digest (Lib. 28, Tit. 5, 92). The testator named Pactumeja Magua as his sole beneficiary, and her father as substituted beneficiary after her. The father was put to death, and the report was that the daughter, too, had been killed. The testator then modified his will, explaining: ' *Quia, heredes cuos volui*habere, *nihi continere non potui, Novius Rufus esto/*As a matter of fact the daughter had not been executed and survived the testator. The inheritance was decreed to pass to her. The law as to wills was then precisely the same upon the point of revocation (Code, 6, 23, 5).” Whether this citation from the Digest also refers to the law relating to *Exheredatio*I am not sufficiently learned to determine for myself, and I do not think it important here to take time to investigate the matter. There are some things, however, in this second case, mentioned in the Digest, which also points to the law relating to exherison. Justinian, or his adviser, Tribonian, in a decree (0. 6, 28, 4) placed daughters in the same position as sons. But if it were otherwise, in this matter and the case in point, I must go by the later cáses in our own courts or in their exemplar, as there is modern authority and the point is no longer open. This being so, the Roman law is in any event quite out of all consideration. It is only in the instance of original questions devoid of modern authority that we may resort to the civil or canon law. Jenks’ History English Law, 195] Matter of Youngs, 73 Mise. Rep. 335, 339.

The proponents are. entitled to a literal probate of the script propounded as the last will and testament of Mrs. Henriette Swartz. Eor the reasons fully stated no construction is,necessary or proper at this time in this court.

Decreed accordingly.