
    In re HAMILTON.
    (Supreme Court, General Term, First Department.
    February 16, 1894.)
    1. Wills—Status of Contestant—Power of Surrogate’s Court.
    Where probate is contested by a person claiming to be the widow of testator, the question as to whether contestant is testator’s widow may be tried before testimony is taken as to the factum of the will.
    2. Same—Who mat Object to Legal Status of Contestant.
    Any legatee named in the will may raise the question that a contestant of the will has no such interest as entitles her to appear in the proceeding.
    8. Marriage—Evidence.
    In order to defeat a marriage by showing that the woman had contracted a former marriage, it is not necessary to prove such former marriage “beyond all doubt.”
    4. Marriage—Proof of—Circumstantial Evidence.
    A marriage may be established by circumstantial evidence.
    5. Foreign Laws—Presumption.
    In the absence of evidence, the laws of another state will be presumed to be the same as the common law of New York.
    Appeal from surrogate’s court, New York county.
    
      Proceeding for the probate of the will of Robert Ray Hamilton, deceased. The will was admitted to probate, (12 N. Y. Supp. 708,) and contestant appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    C. W. Brooke, for appellant.
    Elihu Root, for respondent.
   VAN BRUNT, P. J.

In August, 1890, Robert Ray Hamilton died in the state of Wyoming, being at the time a resident of this state. The said Hamilton left a last will and testament bearing date the 17th of March, 1890; and on or about the 2d of October, 1890, one of the executors named in said will petitioned the surrogate that a citation might issue to the heirs and next of kin of the deceased, and that the said will of the said Hamilton might be proved as a will of real and personal property, and letters testamentary issued thereon. On said petition the petitioner stated, on information and belief, that one Evangeline L. Mann, otherwise known as Evangeline L. Steele, and also as Evangeline L. Hamilton, then residing at Trenton, in the state of New Jersey, claimed to be the widow of the deceased, and that a certain child, known as Beatrice Ray, claimed to be the adopted daughter of the deceased. Citations were thereupon issued, among others, to said Evangeline L. Steele (otherwise Maim, otherwise Hamilton) and Beatrice Ray, as the heirs and next of kin of Robert Ray Hamilton, deceased. Upon the return of said citations the said Evangeline L. Steele appeared, and claimed to be the widow of the deceased, and filed objections to the probate of the will. Thereupon, one of the legatees and beneficiaries named in the will denied the right of the person styling herself Evangeline L. Hamilton, widow of Robert Ray Hamilton, to appear and contest the probate of the will, and also denied, upon information and belief, that said so-called Evangeline L. Hamilton was the widow of Robert Ray Hamilton. Upon the matter coming on for trial before the surrogate, the surrogate directed that as the status of the appellant, claiming to be the widow, was denied, and her right to object to the probate denied, the burden was upon her to show that she had a status in court. The counsel for said Evangeline L. Steele thereupon called a witness proving a ceremonial marriage which had taken place between said Robert R. Hamilton and the contestant in the month of January, 1889. The proponent thereupon proceeded to offer proof, without any objection being made upon the part of the contestant, tending to show that at the time of her alleged marriage with Hamilton the contestant had a husband living, and the contestant offered evidence in reply. At the close of the testimony the surrogate held the previous marriage to be established, and denied the right of the contestant to appear in the proceeding; and from the decree thereupon entered, admitting said will to probate, and adjudging that the contestant was not the widow of Robert Ray Hamilton, this appeal is taken.

The principal objection urged by the counsel for the appellant— which, however, was not taken during the progress of the trial before the surrogate—was that the court erred in trying the question as to the status of the appellant as the widow of the decedent before taking testimony as to the factum of the will. It is urged that the appellant was made a party to the proceeding by the petition of the executor for probate, and that by section 2528 of the Code it is provided that the appearance of a party against whom a citation has been issued has the same effect as the appearance of a defendant in an action brought in the supreme court. We think, in the presentation and argument of this objection, which goes to the jurisdiction of the surrogate, that the learned counsel, has overlooked the authority which is vested in the surrogate, and which is necessary in the performance of his duties, and that he has also sought to invest the appearance of a defendant in an action in the supreme court with a sanctity to which it is not entitled. It is a very familiar rule in the conduct of the trial of cases, particularly those in the nature of equity proceedings, where there is a preliminary question as to the right of one of the parties either to bring the action or to intervene as a defendant, to try such question, and to determine the status of the parties, before attempting to pass upon the final rights in respect to which the action is brought. Such is the foundation of almost all interlocutory judgments in equity actions, except those entered upon demurrers. In actions for a partnership accounting, it is familiar practice, where the partnership is denied as to one of the parties, to first try the question of partnership, before allowing such party claiming to be a partner to vex the court and the other parties to the litigation with his presence in a controversy in which he may have no interest. So, in the case at bar, only those persons who are interested in the probate of this will had a right to contest the same. The provision of the statute is (if the will relates to both real and personal property, as in this case) that the husband or wife, if any, or the heirs or next of kin, of the testator, and all persons in being who would take an interest in any portion of said personal property, and the executor or executors, trustee or trustees, named or described in the will, shall be cited. And it provides that any person, although not cited, who is named as a devisee or legatee in the will propounded, or who is otherwise interested in sustaining or defeating the will, may appear, and support or oppose the application. These provisions of the statute show that only those persons who are interested in the question as to whether the wifi, shall be probated or not can be heard to support or oppose the application. And it seems to be a proposition which hardly needs a suggestion for its refutation that one person cannot give another a standing in court for contesting the probate of a will by naming him in the petition as being that which he is not. Any person designated in the will as executor, devisee, or legatee, or any person interested in the estate, or a creditor of the decedent, may apply to have a will admitted to probate. Can it be that any one of these parties, by simply naming another party as an heir or next of.kin, or a wife or husband, as the case may be, can give that person a status to contest the probate of a will in which he has not the slightest possible interest, because the relationship does not exist? Clearly not. As in respect to the other procedures of the surrogate’s court, those incidental powers which are necessary for the fulfillment of the duties imposed upon him by statute are possessed by the surrogate, as was recognized in Re Peaslee’s Will, (decided by this court in November, 1893,) 25 N. Y. Supp. 940. So, in reference to the probate of a will, where the right to support or oppose such application depends upon interest, has the surrogate the right to determine the status of the party proposing to contest? Upon an accounting for the purpose of distribution of an estate, the surrogate has the power to construe the will, so far as it affects his decree of distribution. This is an incidental power. He now has, by provision of the statute, the power, upon the probate of a will, to make such construction, where then required. And to say that a party ■may come in and delay the proceedings without establishing any right or status seems to place such proceedings at the mercy of any interloper who may have the assurance to claim an interest, even though without the slightest foundation.

It is urged that the surrogate’s court has no equity jurisdiction. It is undoubtedly true. And it is further urged that therefore the court could not decree that this appellant was not the widow of the testator. And in support of this proposition our attention is called to the well-established principle that the surrogate’s court has no power to annul or set aside, on the ground of fraud, a release executed by the parties interested in the estate, to the executors thereof. But it has never been held that the surrogate’s court had no power to try the question as to whether any such alleged release existed or not. The surrogate’s court would undoubtedly have the right to try the question of a release presented before it, as to whether it had ever been signed, or whether it was a forgery; and it is a similar question which was being determined by the surrogate in reference to the alleged marriage with the testator. He was not making a decree annulling a marriage. He was simply determining the question as to. whether the contestant had any status in his court by reason of her being the testator’s widow. In order that this performance in Jersey between Hamilton and the appellant should be a marriage, it was necessary that both parties should be free to contract, and if either party was under a disability, although the parties went through the forms of a marriage, there was no marriage; and that is all that the surrogate attempted to determine. If the appellant, by virtue of an alleged marital relation, was seeking to enforce her rights in a court of law, those rights could be defeated by showing that no such relation existed, because, at the time of the attempted contract, of the disability of one of the parties. This has always been the rule; and the surrogate, in passing upon the status of this contestant, assumed no equity jurisdiction, but was passing upon a legal question.

It is further urged that in any event the legatee who filed the objection to the appearance of the appellant as a contestant of this will, being simply a defendant to this proceeding to probate the will, had no right to question the status of this contestant. The force of this objection, we are unable to see. Any party interested had the right to bring this question to the attention of the surrogate, and, in the orderly conduct of the proceeding, ask him to pass upon it. The proceedings for the probate of the will did not belong to any of the parties, but belonged to the court. The court has a right to bring in other parties, to allow other parties to be heard, and to determine whether parties claiming to be heard have any status in the proceeding, whether any of the other parties object or not. It seems to be assumed by the appellant that the surrogate is the mere agent of the proponents of the will; that he has no powers of his own for the purpose' of seeing that justice is done. This is contrary to the whole scope of the authority conferred upon the surrogate in the probate of wills. He is bound to see that the proceedings are regularly conducted, to hear those entitled to be heard, and to prevent contests of wills by persons who have no interest.

Various errors claimed to have been made by the surrogate in the admission of testimony have been called to our attention. But, upon an examination of the record, we do not see that any of them are deserving of special comment or mention.

It is urged, upon various grounds, that the proof was wholly insufficient to establish the existence of a marriage between Joshua J. Mann and the contestant; that there was no evidence of a contract of marriage, per verba de presentí, between Mann and this contestant; that, in attempting to contract with Hamilton, the contestant was guilty of bigamy, if a marriage already existed between herself and Mann; and that, there being a presumption of innocence, there was no sufficient proof to overcome such presumption. And it is further urged that the parties contesting her right to appear must prove beyond all doubt that she was the wife of Joshua J. Mann at the time of the attempted marriage with Hamilton. The latter proposition seems to show the extremities to which the appellant’s counsel must resort in order to support the position he has taken upon this appeal. He claims before this court a dignity of proof in a civil proceeding which does not prevail upon a trial involving the life of the defendant. It is undoubtedly true that cohabitation and repute, merely, do not constitute a marriage. There must be an agreement or contract to be husband and wife. Mere living together as such is not sufficient. The agreement to be such is an absolute and vital prerequisite to constitute a valid marriage. But murder can be proved by circumstantial evidence, and there does not seem to be any reason why a valid marriage may not be established by the same class of proof.- Men are convicted and executed without having eyewitnesses of their crime. Circumstances which inevitably lead to the conclusion of the commission of the crime are sufficient in a capital case, and in a civil case a preponderance of evidence which tends to establish the proposition is all that is required. So, where the issue is of marriage, although the contract itself may not be established by direct evidence, yet it may be established by circumstances. It may, from the actions of the parties, their visible relations to each other, and their representations to others, be inferred that at some previous time they had entered into a contract of marriage; and that is all the dignity of the proof of cohabitation and repute. It is circumstantial evidence tending to establish a previously existing fact; and such proof may be as satisfactory as, and often more satisfactory than, the much more limited direct evidence which it is ordinarily possible to produce.

It has been further urged as an objection to the character of the proof offered in this case that there was a failure to prove that a contract of marriage, per verba de presentí, was a marriage, under the laws of Pennsylvania, and that there was no proof what the laws of that state were, and that there was no proof that this marriage was existing on the 7th of January, 1889, the time of the attempted marriage, or that no divorcement or annulment of any pre-existing marriage was had. As for the laws of Pennsylvania, in the absence of proof, they are presumed to be the same as the common law' of this state. As to the question of the proof that there was no divorce or annulment of any pre-existing marriage, even in a trial for bigamy, no such proof is required. The relation once established, it is supposed to continue to exist until something is proved to have dissolved it. And, the existence of this marriage between Mann and the contestant having been established, it was incumbent upon her to show that the disability had been removed when she attempted to marry the testator.

It would be impossible, within the limits to which this opinion should be kept, to consider in detail the evidence before the surrogate tending to establish the marriage to Mann. The probative character of such evidence always depends largely upon the peculiar features of each individual case, as will be seen by a reference to the adjudications upon the question as summed up in the case of Hynes v. McDermott, 10 Daly, 423. In the case at bar the evidence of cohabitation and repute was of the most satisfactory and complete character. Indeed, it seems it would have been difficult for the surrogate to come to any other conclusion, from all the evidence introduced of the long existing relations between Joshua J. Mann and the appellant, but that they were husband and wife. It undoubtedly is true, as claimed by the appellant, that the surrogate seems to have had an exaggerated idea in regard to the force of his adjudications upon questions of fact, where he says:

“After having ascertained the fact, his finding upon a conflict of evidence is, in my judgment, equivalent to the finding of a jury, and must settle forever, in all courts, the question of fact involved. If he errs in the application of the law, the appellate court will correct his mistake. But they are powerless, as they should be in the proper administration of human affairs, to inquire into the fact which he or a jury has determined, I think, for all time.”

In the enunciation of this proposition, the surrogate seems to have forgotten the provisions of the Code which make the general term a court of original jurisdiction upon appeals in these proceedings; and they may take additional evidence, and must determine questions of fact as they think the preponderance of evidence requires. The powers of the court upon appeal from the surrogate on the probate of a will are entirely different from those upon appeal from the verdict of a jury; and questions of fact upon conflicting evidence are finally determined, not by the surrogate, but by the general term. Bearing in mind this responsibility upon the part of the general term, we not only see no reason to differ from the conclusions arrived at by the surrogate upon the questions of fact, but, as already intimated, we do not see how, under the evidence, he could have reached any other result. The decree should be affirmed, with costs. All concur.  