#### EDWARD L. DOWNEY, Appellant. *v.*MARY L. DOWNEY and GEORGE DOWNEY, Respondents, Impleaded with others.

*Proof of*will— *deposition of uyitness not affected by the subsequent filing of objections.*

Upon the return day of citations issued upon an application to admit a will to probate, the appellant, two of the heirs-at-law and the petitioner appeared before the surrogate, and the formal depositions of the subscribing witnesses were taken before him and filed in his office. Afterwards, on the same day and before the decree of probate was entered, the appellant appeared and asked leave to file objections and contest the probate of the will, which was granted.

*482Upon an adjourned day, the contestant claimed that the proofs, taken before he filed Ms objections and asked leave to contest, were no longer evidence and asked that the proponent be required to produce the subscribing witnesses and examine them.

*Held,*that as the depositions were taken before the surrogate in open court, they were proofs as prescribed by the statute, and that they did not cease to be evidence by reason of the subsequent filing of objections by the contestant. *Collier*v. *Idley’s JSxr.*(1 Brad. Sur. it., 94), distinguished.

That the proponent was not obliged to recall the witnesses, and again prove the due execution of the will.

Appeal from a decree of tbe Surrogate of Erie county, admitting to probate tbe will of Tbomas Downey, deceased,

*Thos. Oorlett,*for the appellant.

*J. M. Humphrey,*for tbe respondents.

Smith, J.:

This is an appeal from a decree of tbe surrogate of Erie county, admitting to probate tbe will of Tbomas Downey, deceased, and establishing tbe same as a will of both real and personal estate. It appears by tbe return that, on tbe return day of tbe citation Mary L. Downey, the respondent, upon whose petition tbe citation was issued, and George Downey, and Edward L. Downey, tbe appellant, two of tbe heirs-at-law, appeared before the surrogate, and tbe proof of tbe will was entered upon and proceeded with. Tbe formal depositions of tbe two subscribing witnesses to the will were taken before tbe surrogate, and filed in bis office. Afterward, and on tbe same day, and before tbe decree of probate was entered, tbe appellant again appeared before tbe surrogate and asked leave to file objections and contest tbe probate of tbe will, which was granted. Afterward, at an adjourned day, tbe parties appeared by counsel, and the contestant, by bis counsel, claijned that the proofs taken- before be filed bis objections and obtained leave to contest tbe will were no longer available to tbe proponent, and that tbe case was in the same position as if no proof had been made, and be asked tbe surrogate to bold that the proponent must produce, and put upon tbe stand tbe witnesses sworn before tbe objections were filed. He also insisted that, as *483tbe testimony taken before tbe objections were filed, was in tbe form of depositions, and not an oral examination, it was not evidence in tbe case.

These several propositions were overruled by tbe surrogate, and no further proof having been made by either party, tbe surrogate, on motion of tbe proponent’s counsel, admitted tbe will to probate, and tbe counsel for tbe contestant duly 'excepted to tbe several rulmgs.

We perceive no error in tbe ridings of tbe surrogate. When tbe appellant applied for and obtained leave to ’come in and file objections, tbe proponent bad made a case by tbe testimony of tbe subscribing witness which, if unopposed, would have entitled her to tbe probate of tbe will. Tbe effect of allowing tbe contestant to file objections was not to strike out or annul tbe testimony previously taken ; it was merely to permit him to enter at the stage which tbe proceedings bad then reached, and thereafter to contest them. He bad the right to produce and examine witnesses in support of bis objections, or to cross-examine tbe subscribing witnesses whom tbe proponent bad produced. But bo did not ask to be permitted to do either of those thmgs. He insisted that tbe testimony taken should be thrown aside, and that tbe proof should begin *de novo.*His request that tbe proponent should be required to produce tbe subscribing witnesses and put them on tbe stand, was not stated to be for tbe purpose of enabling him to cross-examine them, but as is plainly to be inferred from tbe position taken by bis counsel, it was for tbe purpose of having them examined anew on the part of tbe proponent.

Tbe contestant’s counsel insists that objections having been filed, tbe depositions were no longer sufficient proof. If tbe depositions so-called had been affidavits taken out of court, they would not have been proof in tbe surrogate’s court whether the proceedings were contested or not. But tbe return shows that they were taken before tbe surrogate in open court, tbe witnesses being produced and examined before him ; and they were strictly proofs and examinations “reduced to writing,” as required by tbe statute. (Laws of 1837, chap. 460, § 10.)

Tbe case of *Collier*v. *Idley’s Exr.*(1 Brad. Sur. R., 94), cited by tbe counsel for the appellant, has no application to tbe present *484discussion. That was a case under 2 Revised Statutes, 61 (§ 30), which 'provides that notwithstanding a will of personal property may have been admitted to probate, any of the next of kin to the testator may, at any time within one year after such probate, contest the same or the validity of such will, in the manner therein provided. Allegations being filed against the validity of the will, or the. competency of the proof; the surrogate is to cite the executors, etc., to appear before him and show cause why the probate should not be revoked. (Section 32.) The surrogate shall decide upon the proof taken before him on the hearing of the parties. (Section 35.) It could hardly be doubted that m such a proceeding the proof taken on the probate of the will could not be given in evidence. And so the surrogate held in that case. But the decision, as we understand it, was put upon the intelligible ground that the testimony taken on the probate was not proof for any purpose, not because it was in the shape of depositions, but because the proceedings then pending were of such a nature that the proponent was required to prove the will *de novo.*

The decree of the surrogate should be affirmed, with costs.

MulliN, P. J., and Talcqtt, J., concurred.

■Decree of surrogate affirmed, with costs to be paid by the appellant.