The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-07-08

-IdHsatsfTCts0n fx eSt1te OF John Mason
me petition in this matter originally To
me last year praying for the app ntment Of an amin
traitor on the estate Of John Mason deceascd and re-
vocation OF the letters tesamenry issued upon the
supposed will Of Mr.. Mason This application was mad.
70 me, in consequences of decision OF the supreme
Court declaring hat the paper writing purporpg TO he
the will was not sufficiently proved and directing the
decision of the Surrogate that and decision of
the Circuit Judge affirming he decision of ths sure
gate to be each of them reversed The order proceedA
to award egnei issue try the validity of he will
centaped on behaf The petitioner thai the latter
part of the ordinance directing fegped ISSUE void
because the Court had no to make such order
after referring the judgment ana therefore that the
decree Of reyersa. was conclusive between the parties
Difference to the Supreme Court refused express any
opinion on the merits upon th~ ground, that app-
cation should be first made to the Supreme Conrt to
rect any such error in he form OF giving their Judgment
(f 1t existed before Inferior tribunal required
review the propriey of such decision. This appca-
ton has since been made and the Supreme Court In an
sWer TO IT, have decided that the order properly
entered and az it not peald from biuding
the parties and could not be reconsidered altered
The petitioner has again S.d his application it
becomes necessary for ne now 10 decide upon the merits
Of the application The application to admit the will to
probate originally made in 1889 and the decision of
the Surrogate thereon reversed by him. and affirmed
in June 1872 from which ion an appeal was taken to
the Circuit Judge who also affirmed the decision Of the
Surrogate whereupon appeal taken to the Chancc
or BY the change in the organization Of the Courts the
duty Of deciding The appeal drvolved the Supreme
Court. when the decision made by them reversing
the former decisions Of the Surrogate and Circuit Judge
and directing that feigned issue should be made
try the validity Of the wal That such an order could
have been made by the Circuit Judge is only con-
ceueu put DC ADMITTED tnAt such an order
| required from him in Ill in which he decided
to reverse the Surrogatcs decision upon question of
fact 2 $, p 609 sec 81. and r. 8. p 10, sec so
Upon appeal to the Chancellor he required hear
the same in the other appeals from the Surro-
gate were heard 2R. 8. 6o 1903 In all other ap-
peals from The decins of Surrogates they have beer
generally heard and decided Without the aid of aiury
does not however follow that the Chancellor could not
have ordered eened issue In of that nature
before him. the contrary the effect Of such an appeal
being to carry up the whole from tho Surrogate
Court OF CHANGER, had full power to resort to
he fOr rbo nurpn
OF ascertaniDg the facts necessary to decision thereof
SO tar therefore as the Court Of Chancery had control OF
this case the appsa al there be doubt that until
that Court bad finally disposed Of the its merits,
the Of that Court the whole matter continued
and when so decided the Court still had render
the proper Judgment remit the proceeding to the Court
below for that purpose As the Supreme Court
holds the jurisdiction this matter in the same man
the Chancellor that Court course possesses the
same powers over it, The Supreme Court also possesses
the powers heretofore vested in the Circuit Judge aud the
Court Of Chancery I'LL united in the court
1t proper however to remark that the powers Of the
court While acting on an appeal originally taken to the
Chancellor are not to be COMPOUNDED with the powers
which that Court might receive if the appeal directly
from the Surrogate and that the union of these powers
in the Supreme Court is material the decision OF
this question except so far as the might be involved
in the Execution Of the directing the feigned ssu.
and rendering and order renting the to any other
tribunal for the unnecessary When the appeal to
the Circuit Judge his powers strictly defined by the
statutes he only affirm the decision 81 the
Surrogate He has no power to make any other judy
ment or in any way to modify the decree Of the Sure
the higher courts Nothing in the statute limits thcir
right OF controlling the of giving such final
The statute does not direct any form OF decision,
but leaves to these Courts all the powers which.
On appeais therefore Of this nature the Chsnesor
came vested with Jurisdiction the entire ease and
had authority to proceed with the and make such
final order or decree to him should proper And
such power Is now lodged IN the Supreme court would
only be after final decree in the case upon the merits
that the Surrogate could be called upon to either i'm
favor Of or against the will Uoti such final decision is
made the case still remains with the appellate court The
the Supreme Court reversing the decision OF the
Surrogate and Circuit Judge is not in my judgment, such
decree IT does not decide that the viii invalid but
rcyerses the decisions below and gives the that
the VIII has not been sufficiently proved Ii the Judgment
Of that court had not only reversed the decision Of tho
Surrogate and Circuit Judge but had also declared that
case would have been entirely different. After such
Judgment there would have been propre.y in ordering
a trial by jury. because the first decision upon the
merits would render such useless There il also
room TO doubt whether the order as made by the
supreme Court can in event be considered beyond
The power OF the conrt 1t Is settled principle that
appellate courts, unless limited BY statutory provisions.
have the power to give the Judgment which tia inferior
tribunal should have rendered III. II 14l Ward 95-
hlH ooi Thus We have appellate courts reviewing
judgments, merely leaving the parties new
action; or in addition to reversal ordering Judgment for
the appellant, thus ending the reversing judy
meht o the inferior courts and retaining the
appellate for subsp1 trial or HEARING a. ,yin-
heudgment for rbe appellant sending tho Ace back
TO the inferior tribunal for trial hearing There
is nothing in the statute which would prohibi. the Chan
eior when the appeal was to that court nom final dis
portion OF the case upon the merits lie req uiTed
roceed on the appeal as in other appeals from rogatc
but ne was not limited to reversal of the decree
below. Sec Wandoyck VS.. Allen Hop 352 Where the
chancellor reversed the decision Of the Surrogate
heretofore minated the order which the Circuit
Judge should have made in the opinion Of the Supreme
court and they had made the same order that he should
have made In addition to that the effect Of their order
Is to send back to be heard and dsposed Of at Circuit
Court in the same manner Ms the appeal pending
before the Circuit Judge In the Of Lspenards viii
20 Wtnd, 323 in Which the Court for the Correction Of
Errors reversed the decision Of NIL the courts Judge
here viz merely reversing the decisions below and or
der'Dg eigned issue in the court below In that case
the point was argued BY the counsel yet
OF the judges doubted TO the power Of the court to
make such an order. and Justice Bronson expressly
stated that that Court had power to give the ju
r 322 Ny conclusion is that the appellate court hss
authority to arm or the Judgment appealed from
merely and leave the parties to anew in tina
court below or If that court determine may retain
the case for the purpose Of making such further or
init it to the inferior tribunal for that purpose That in
the present case the Supreme Court having reversed
decree appealed from directed the issue be tried and
either as the appellate court may retain the for
further decree therein may treat it if RENTED
the Circuit Judge for trial Of the issue As all the pow
ers Of that officer vested In the Supreme Court
either course might be within the powers OF that court
ana until final decision upon the merits shall have
been made by that court order can with proprioty
be made by the Surrogate a. seked for by t ettonc
What may be the result Of such action the part Of the
Court y + not for me now to decide Whether
ihe surrogate would be bound upon the finding of the
jury being certified to him. to follow the Of he
statute which regulates such proceedings when pend
before the Circuit Judge whether Supreme Court
must after the trial of such issue make final Judgment
o decree In the matter must be left for future decrm
nation Inc questions under consideration are nv no
means free from difficulty; but my conclusion that nS
du'y isout discharged bya denial of this application
Court OF General Sessions
Before Judge Roebe and Aldermen Cornell and alvord
July This Court sat at ten O'Clock, as before 4
large number cf the day caleu lar; hut IN.
bp