
    Julia Emma Burger, Resp’t, v. John Burger, Jr., Executor, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 11, 1888.)
    
    1. Practice—Appeals from surrogate’s court—Exceptions—Review— Code Civ. Pro., §S¡ 2576-2588.
    Under the Code of Civil Procedure, an appeal on the facts from the decree of the surrogate admitting or refusing to admit a will to probate, brings up for review in the general term of the supreme court the question of the sufficiency and weight or preponderance of evidence, and the general merits of the surrogate’s decision, and it is not necessary that any exception should have been taken to the findings of fact, or that there should have been any request for findings in order to give the general term jurisdiction to review the facts and reverse or affirm the decision of the surrogate thereon. But where the appeal is also upon the law, only such questions of law can be considered as have been properly raised by exception. Where the surrogate refuses to make any finding whatever on-a question of fact, or where he makes or refuses to make a ruling upon any question of law, an exception lies, and'his decision may be reviewed in an appellate court.
    2. Same—Effect of exception to finding of fact.
    An exception to facts found or to a refusal to find upon a question of fact, is only important to entitle an appellant to have a review first in the supreme court, and after in the court of appeals of the strictly legal question which it is the office of the exception to present, but in the supreme court the facts are open for review without any exception.
    3. Same—Practice under Revised Statutes and rule of court no. 44.
    . It was not necessary under the Revised Statutes or the practice prescribed by rule 44, after the passage of the act of 1848, that, an exception should have been taken by the appellant from the decision of the surrogate admitting a will to probate as a prerequisite to the jurisdiction of the appellate court to pass upon the facts, and in case of reversal upon the facts, to direct a feigned issue.
    4. Same—Exceptions—What permitted under Code Civ. Pro., § 2545.
    The finding of a material fact without evidence, or a refusal to pass upon a question of fact, or to find a fact which the evidence conclusively est iblishes, if properly excepted to, raises a question of law for the appellate court, and to such rulings on questions of fact Of de of Civil Procedure, § 2545, permits an exception. But the section has no relation to findings on controverted facts, or to refusals to find facts not conclusively established, or which are not clearly inferrable from the evidence.
    
      5. Same—Motion for a new trial is an appeal to the conscience of the COURT.
    An application to a court for a new trial on the facts in no proper sense presents a question of law. It is an appeal to the conscience of the court, and it is asked to consider whether on the whole facts, a new trial ought to he had.
    ■ Appeal from an order of the supreme court, general term, fifth department, reversing the decision of the surrogate of Monroe county admitting the will of the decedent to probate, and directing an issue to be tried by jury as to the mental capacity of the testator.
    
      W. A. Sutherland, for app’lt; Thomas Raines, for resp’t.
    
      
       Affirming 44 Hun, 624, mem.
      
    
   Andrews, J.

This is an appeal by the executor of the will of John Burger, deceased, from an order of the general term reversing on the facts the decision of the surrogate of Monroe county admitting the will to probate, and directing an issue to be tried by a jury as to the mental capacity of the testator when the will was executed. The appellant in limine insists that the general term had no power to review the finding of the surrogate on the facts, for the reason that there was no sufficient exception in the case This question involves a consideration of the practice to be pursued on an appeal from the decree of a surrogate in probate cases, in order to enable the general term to review his decision on the facts. Section 2576 of the Code expressly authorizes an appeal to be taken from the decision of a surrogate upon questions of law, or upon the facts, or upon both.” The contestant, in her notice of appeal, specified that the appeal was taken both on the law and the facts. The surrogate, after the hearing, made and filed his decision, stating separately his findings of fact and his conclusion of law. He found that the will was duly executed; that at the time, the testator was of sound mind, competent to make a will, and fully understood its contents, and was under no restraint, and as a conclusion of law from these facts that the will should be admitted to probate.

The contestant thereupon excepted in writing to “each and every part of the conclusion of law ” found and contained in the decision of the surrogate, and made no other exception to the findings, and no requests to find were made by either party.

The exception to the conclusion of law raised simply the question whether upon the facts found or any supporting facts not specifically found, the conclusion was justified. Belknap v. Sealey, 14 N. Y., 148; Armstrong v. Du Bois, 90 id., 97. The conclusion of the surrogate was plainly in accordance with' his findings of fact, and the jurisdiction of the general term to review the facts or to order issues, if it existed, must rest upon some other basis than this exception.

The general power of the supreme court at general term to review the decree of a surrogate admitting a will to probate and to reverse his decree on the facts, and order issues to be tried by a jury when in its judgment the decision is contrary to, or against the weight of evidence, or the facts are so doubtful that in the opinion of the general term justice will be promoted by.a re-trial before a jury, is clearly recognized by the Code and is incontestable. Code, §§ 2576, 2588.

The question is, by what procedure is this power to be invoked and how is the right of a party seeking its exercise regulated. There has always existed in this state in some tribunal a supervisory power over the decisions of a surrogate in probate cases upon the facts. Under the Revised Statutes an appeal was permitted to the circuit judge from a decison of a surrogate admitting or refusing probate of a will, who was authorized to reverse the decision on the law or the facts, and if the reversal was on a question of fact, to direct a feigned issue to be tried by a jury. 2 R. S., 66, §§ 55, 57. This subject was not affected by the Code of Procedure of 1848, but by chapter 185, of the laws of that year, the jurisdiction, theretofore vested in the circuit judges in probate cases, was transferred to the supreme court and was thereafter exercised by the general term.

In the supreme court the practice was prescribed by rule forty-four. It provided that the appeal should be instituted by petition by the party appealing, which should briefly .state the general nature of the proceedings and of the sentence, order or decree appealed from, and should specify the fact or facts complained of as erroneous, unless the whole sentence, order or decree was claimed to be so, in which case it was sufficient to so state. It was not, as we understand, necessary under the Revised Statutes, or the practice prescribed by rule forty-four, after the passage of the act of 1848, that an exception should have been taken by the appellant from the decision of a surrogate admitting a will to probate as a prerequisite to the jurisdiction of the appellate court to pass upon the facts, and in case of reversal upon the facts, to direct a feigned issue. Under rule forty-four the filing of the petition alleging that the decision of the surrogate was erroneous on the facts, raised the question whether his decision was supported by the facts, or by the weight of evidence, and enabled the court to consider whether justice required a new trial before a jury.

The review was in the natute of a rehearing in equity, and the court examined the case de nova, and it was held by the chancellor that the appellate court might allow the parties to introduce new allegations or further proofs, in analogy to the procedure under the civil law. Gardiner v. Gardiner, 34 N. Y., 164; Clapp v. Fullerton, id., 195; Devin v. Patchin, 26 id., 441; Scribner v. Williams, 1 Paige, 550.

But it is claimed that the practice has been changed by the Code of Civil Procedure, and that it is now necessary, in order to permit the general term to review the facts on an appeal from the decision of a surrogate granting probate, that his finding of facts must have been challenged by an exception. This construction is based upon section 2545 of the Code. That section permits an exception to be taken to a ruling of the surrogate on the trial before him of an issue of fact, including a finding or refusal to find upen a question of fact, “in a case where such an exception may be taken to a ruling of the court upon a trial without a jury, upon an issue of fact as prescribed in article 3 of title 1 of chapter 10 of this act,” and also to a finding or refusal to find upon a question of fact made on the settlement of the case. But the questions which may be raised by exception under section 2545 are questions of law. This was stated in the original note to the section, and is rendered plain by reference to,the other sections of the Code to which it refers. Sections 992-998.

The finding of a material fact without evidence, or a refusal to pass upon a question of fact, or to find a fact which the evidence conclusively establishes, if properly excepted to, raises a question of law for the appellate court, and to such rulings on questions of fact- section 2545 permits an exception. But the section has no relation to findings on controverted facts, or to refusals to find facts not conclusively established, or which are not clearly inferable from the evidence. This construction is in accordance with the uniform construction in analogous cases. Potter v. Carpenter, 71 N. Y., 74; Stewart v. Morss, 79 id., 629.

In the present case the surrogate found that the will was the sane act of a competent testator. It is not claimed that there was no evidence to support his finding. But it is insisted by the. contestant that the preponderance of evidence was against his conclusion. This contention she had the right to present to the general term, and that court had the power, to determine it and to affirm or reverse the determination of the surrogate thereon, and on reversal to order issues.

The point of practice is, was the contestant bound to except to the surrogate’s finding that the testator was sane, or to present a request that he should find that he was insane and incapable of making a valid will, and except to the refusal of the surrogate to find in accordance therewith, in order to enable,her to argue the facts at the general term, and the court to decide upon them.

We think not, and are of opinion that the appeal from the decision of the surrogate on the facts as well as the law, was alone sufficient to give the appellate court jurisdiction to review the facts, and that an exception was neither necessary or proper. In the ordinary case of an action triable by jury, the general term has power to review the facts, and reverse and order a new trial if justice seems to require it, although there may be evidence to sustain the verdict. But in that case no exception is necessary to give the court jurisdiction. It is necessary, however, that a motion for a new trial should have been made and denied by the court below, for the plain reason that on such a motion the trial judge has for the first time an opportunity to pass on the facts, and the party, making the motion may by that means, obtain the necessary relief without an appeal. But an appeal from an order denying the motion gives the appellate court jurisdiction to review the facts, and it does not depend on any exception. Matthews v. Meyberg, 63 N. Y., 656; Hume v. Mayor, 74 id.. 268; Boos v. Ins. Co., 64 id., 236. We think the true rule under the Code is, that an appeal on the facts from the decree of a surrogate admitting or refusing to admit a will to probate, brings up for review in the supreme court the question of the sufficiency, weight or preponderance of evidence and the general merits of the decision, and that it is not necessary that any exception should have been taken to the findings of fact, or that there should have been any request for findings in order to give the general term jurisdiction to review the facts and reverse or affirm the decision of the surrogate thereon. But where the appeal is also upon the law, only such questions of law can be considered as have been properly raised by exception. If an exception was taken to the conclusion of law of the surrogate, it raises the question whether it was justified by the facts found. If taken to a finding of fact it presents the question whether there was any evidence to sustain the finding. So where the surrogate refuses to make any finding whatever on a question of fact, or where he makes or refuses to make a ruling upon any question of law, an exception lies and his decision may be reviewed in the appellate court.

But an exception to facts found, or to a refusal to find upon a question of fact, is only important to entitle the appellant to have a review first in the supreme court and afterwards in this court, of the strictly legal question which it is the office of an exception to present. But in the supreme court the facts are open for review without any exception. An application to a court for a new trial on the facts in no proper sense presents a question of law. It is an appeal to the conscience of the court, and it is asked to consider whether, on the whole facts, a new trial ought not to be had. The review on the facts by the supreme court, of a decision of a surrogate admitting a will to probate, still retains, in many features, the character of a rehearing in equity. This is quite clear from section 2586 of the Code, which permits the general term on an appeal from the surrogate on the facts, to receive further testimony, or documentary evidence, and appoint a referee, and declares that the appellate court has the same power to decide the questions of fact which the surrogate had. We are of opinion, therefore, that the point of jurisdiction of the general term, urged by the appellant, is not well taken.

We are not sure that what has been said may not be inconsistent with some expressions in Angevine v. Jackson (103 N. Y., 470; 3 N. Y. State Rep., 643), and the principle there decided that there must be an exception in order to raise a question of law in the appellate court is unquestionably sound. The disposition of the point discussed leaves but little to be said. The general term has power to reverse on the facts. The .case of Sutton v. Ray (72 N. Y., 482) conclusively shows that this court will not review the order of the general term directing issues. The claim that the contestant was not aggrieved by the decision of the surrogate has no force.

We think the proper disposition of the case is to dismiss the appeal, leaving it to stand upon the order of the general term.

All concur.  