
    In the Matter of Proving the Last Will and Testament of William M. Rice, Deceased, as a Will of Real and Personal Property (Instrument Bearing Date September 26, 1896). In the Matter of Proving the Last Will and Testament of William M. Rice, Deceased, as a Will of Real and Personal Property (Instrument Bearing Date June 30, 1900). Albert T. Patrick, Appellant; John D. Bartine, Respondent.
    
      Will — adjournments of proceedings for its prolate are discretionary with the surrogate — errors in the rejection of evidence do not require a reversal where the evidence, if considered, would not home changed the result.
    
    October 12, 1900, John D. Bartine filed a petition for the probate of an instrument dated September 26, 1896, which purported to be the last will and testament of William M. Rice, deceased. November 30, 1900, Albert T. Patrick filed a petition for the probate of an instrument dated June 30, 1900, which also purported to be the last will and testament of the said William M. Rice." The proponents of each instrument filed objections to the probate of the other instrument and the two proceedings were consolidated. During the pendency of the proceeding Patrick was indicted for the murder of Rice, and Meyers and Short, the witnesses to the alleged will of 1900, were indicted for perjury and forgery.
    At the instance of Patrick numerous adjournments of the proceeding, extending over a year, were taken over the objection and protest of Bartine. These adjournments were procured mainly upon the ground that the proceeding should not be continued until after the indictments of Patrick, Meyers and Short had been tried, and as a condition of obtaining one or more of such adjournments Patrick’s counsel stipulated that, if the proceeding was adjourned until after Patrick had been tried under the indictment, he would - not ask for any further adjournments.
    After Patrick had been tried and convicted under the indictment, but before Meyers and Short had been tried under the indictments found against them, the proceeding, which had then been pending in the Surrogate’s Court for over a year, came on for a hearing.
    
      Held, that it was discretionary with the Surrogate’s Court to refuse to grant a further adjournment of the proceeding until after the indictments found against Meyers and Short had been tried.
    The Appellate Division will not reverse a decree of the Surrogate’s Court, because of an error committed by the surrogate in rejecting competent evidence, if the evidence in question is printed in the record on appeal and the Appellate Division, treating such evidence as though it were in the case, can see that the conclusion reached by the surrogate is correct.
    
      Appeal by Albert T. Patrick, a legatee and executor named in the alleged last will and testament of William M. Rice, deceased, bearing date June 30, 1900, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 27th day of June, 1902, refusing to admit to probate a paper purporting to be the last will and testament of William M. Rice, deceased, bearing date the 30th day of June, 1900, and admitting to probate as the will of the said deceased a paper dated September 26, 1896, and also from an order of consolidation of the above-mentioned proceedings made orally in the course thereof.
    
      John C. Tomlinson, for the appellant.
    
      William B. Hornblower, for the respondent.
   McLaughlin, J.:

On the 23d of September, 1900, William M.' Rice, upwards of eighty years ’ of age, then a resident of the county of New York, died, leaving as his only heirs at law and next of kin one brother, two sisters and descendants of deceased brothers and sisters. On the twelfth of the following month John J). Bartine filed in the office of the surrogate of the county of New York a paper dated September 26, 1896, which purported to be the last will and testament of Mr. Rice, together with a petition asking for its probate, upon which' citations were issued to the necessary parties; The executors named in this paper were William M. Rice, Jr., John D. Bartine and James A. Baker, Jr., and the residuary legatee and devisee was the “ William M. Rice Institute for the Advancement of Literature, Science and Art,’ a corporation domiciled in the City of Houston, in Harris County, Texas.’’ Upon the return of-the citations, objections to the probate of this instrument were made by the heirs at law and next of kin of the deceased, which, however, were -subsequently withdrawn, and no one, except the appellant herein, objected to the probate of that instrument or questioned in any way the decree of the surrogate with reference thereto.

On the- 30th of November, 1900, Albert T. Patrick, the appellant on this appeal, filed a paper dated June 30, 1900, in the office of the surrogate of the county of New York, which purportéd to be the last will and testament of William M> Rice, together with a petition asking for the probate of the same. The executors named in this paper were William M. Rice, Jr., James A. Baker, Jr., and Albert T. Patrick, and the latter was the residuary legatee and devisee. Citations were issued upon Patrick’s petition directed to the necessary parties, on the return of which he filed objections to the probate of the alleged will of 1896, and Bartine filed objections to the probate of the alleged will of 1900. Both proceedings were thereafter consolidated, and the issues raised by the petitions and objections came on for trial before the Surrogate’s Court on the 8th of April, 1901, when Patrick asked for a postponement of the trial until after the hearing and determination of criminal charges which had been made against him, and Meyers and Short, the witnesses to the alleged will of 1900. The application was granted and thereafter, from time to time, various applications for adjournments were made and granted until the 16th of April, 1902, when the surrogate refused to grant any further postponment and then the proceeding was finally heard. Patrick, in the meantime, had been tried and convicted of murder in the first degree for the killing of Rice, and an appeal had been taken from the judgment of conviction, which -was then pending, and indictments for perjury and forgery had been found against Meyers and Short, based upon testimony which they had given in the criminal proceedings against Patrick to the effect that the signature of Rice to the will of 1900 was genuine, upon which they had been arrested, but a trial had not been had.

The witnesses to the 1896 will were called and their testimony was to the effect that that instrument was executed by William M. Rice, deceased, as and for his last will and testament, in the manner required by statute (2 R. S. 63, § 40). Their testimony was uncontradicted and there does not seem to have been any contest between the parties as to the fact that this instrument was duly executed, or that its execution was the result of undue influence, or that the testator did not have testamentary capacity. The real, contest, however, turned upon the genuineness of the signature of Rice to the will of 1900, and as bearing upon that question much testimony was introduced by the respective parties. The witnesses Meyers and Short were called by Patrick, the proponent of that will, but after being sworn, they each refused to answer any questions put to them touching the genuineness of Rice’s signature or the validity of that instrument, upon the ground that their answers might tend to incriminate them. The privilege which they claimed in this respect was held by the surrogate to be a valid one, and they were excused from testifying, and thereafter witnesses were produced who gave testimony to the effect that their signatures upon that paper were genuine. This testimony, however, was received conditionally and at the close of the trial the same was stricken out. At the conclusion of the trial the surrogate found in favor of the will of 1896 and against the will of 1900, and a decree was subsequently entered admitting the former to probate and denying probate to the latter, and from this decree Patrick has appealed.

In the voluminous brief presented by his counsel, numerous errors are assigned, but which in fact, though presented in different forms, constitute but two, and may be so considered. These are that the surrogate erred (1) in refusing to postpone the probate proceedings until after the criminal proceedings instituted against Meyers and Short had been disposed of, and (2) in striking out certain testimony as to the genuineness of their signatures on the alleged will of 1900.

As-to the first, it must be conceded that the surrogate had jurisdiction to try the proceeding, and for that purpose he had the power to adjourn from time to time as occasion required, and whether an adjournment should be granted or refused rested in his sound discretion, subject, of course, to review by this court for an abuse of the discretion. This is but another way of stating the general rule, which is that adjournments are in the discretion of the trial courts. (Paine v. Aldrich, 133 N. Y. 544; Borley v. Wheeler & Wilson Mfg. Co., 34 N. Y. St. Repr. 987.) Nor does the fact that criminal proceedings were ponding either against Patrick, the proponent 'of the 1900 will, or against Meyers and Short, the witnesses to it. take the case out of the general rule. (Matter of Fleming, 5 App. Div. 190; Cook v. Ellis, 6 Hill, 466; Quimby v. Blackey, 63 N. H. 77; Commonwealth v. Bliss, 1 Mass. 32; Boston & Worcester Railroad Corporation v. Dana, 1 Gray, 83.) The conclusion reached in the criminal proceedings would not have any effect on any of the questions before the surrogate. (People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339.) The appellant had n« inherent right to have the proceedings adjourned, nor do we think, upon the facts presented, that the surrogate improperly exercised his discretion in refusing to adjourn. In this connection it must be borne in mind that the proceeding for the probate of the two wills had been pending over a year; that numerous adjournments had been taken at the request of the proponent of the 1900 will, and against the objection and protest of the proponent of the 1896 will ; that these adjournments were procured mainly upon the ground that the proponent of the 1900 will had been indicted for murder and that the surrogate, until the indictment had been disposed of, ought not to enter upon an investigation which would call forth many of the facts which would be called out upon the trial of the indictment. The counsel then acting for the proponent of the 1900 will, in order to procure one or more adjournments, stipulated in open court, as appears from the record, that if an adjournment could be had until after the indictment of Patrick for murder had been tried, that then he, Patrick, would proceed with the proceedings before the surrogate and would not ask for any further or other adjournments. The fact that the indictment for murder was pending seems to have impressed the surrogate, and wé think properly, with the propriety of adjourning the probate proceedings until after that had been tried. Adjournments were taken accordingly, and it was not until after the trial of that indictment that the surrogate refused to further adjourn the proceedings.

It might well be urged that a further adjournment ought not to have been taken, inasmuch as it would have been a violation of the stipulation. But, irrespective of this, we think that the surrogate properly refused to further adjourn the proceeding. Here was a large estate. The proponent of the 1896 will, if right in his contention that that was the last will and testament of Rice, and that the 1900 will was a forgery, was entitled, in view of the duties cast upon him, to administer the estate of his testator according to his wishes, and to that end letters testamentary should be issued to him and the other executors named therein.

Olearly, the fact that indictments were pending against the witnesses to the alleged will of 1900 was insufficient to postpone indefinitely the probate proceedings. When these witnesses should be tried under the indictments found against them rested entirely with the district attorney of the county where the same had been found, subject, of course, to a motion to dismiss the indictment for lack of prosecution. It is not claimed that the proponent of the 1896 will had sought to control in any way the action of the district attorney, other than to furnish evidence sufficient to justify an indictment or conviction. ■

Upon this branch of the case, therefore, we conclude that no error was committed by the surrogate in refusing to further postpone the proceedings.

As to the second alleged error, what the appellant’s counsel claims is that the surrogate erred in striking out this testimony (1) because it was competent as bearing upon the question as to whether the 1900 will should be admitted to probate(2) because it was competent as tending to establish a revocation of the will of 1896, and (3) because it was competent to be considered in connection with the testimony of the handwriting experts called by Patrick to contradict the handwriting experts called by the proponents of the 1896 will.

The conclusion at which we have arrived renders it unnecessary to consider or pass upon the merits of the questions thus raised. It may be assumed that the testimony stricken out was admissible for some one or more of the reasons assigned, and for that reason that the surrogate erred in striking it out; but it does not follow, because such error was committed, that the decree of the Surrogate’s Court ■was wrong. On the contrary, if this court comes to the conclusion that, with this testimony in, the same result must be reached, then the error was harmless. All of the testimony stricken out is printed in the record before us, and we insert it again in the record as evidence and now consider it; and after such consideration, we think that the conclusion arrived at by the surrogate was right. We have a right to do this, because we sit more as a trial court upon the facts than as a court of review. (Code Civ. Proc. § 2586.) The section of the Code just cited provides that where an appeal is taken from a decree of a Surrogate’s Court upon the facts, the appellate court has the same power to decide the questions of fact which the surrogate had, and it may, in its discretion, receive further testimony or documentary evidence and appoint a referee. The court thus could, if necessary, call the witness and have him give again this testimony ; but as it is already in the record, this would be an idle ceremony.

In Clapp v. Fullerton (34 N. Y. 190) it was held that the admission of improper evidence on a hearing before the surrogate would not justify a reversal of the decree if the facts established by legal and competent evidence were sufficient to uphold it.

In Horn v. Pullman (10 Hun, 473) the late General Term held, where competent evidence was rejected by the surrogate, that the court sitting in review of his action should inquire whether, if the evidence rejected had been received and a finding in conformity therewith had been had, the court would affirm the decree. If it would not, then the decree should be reversed by reason of the rejection of the evidence; otherwise, the evidence should be disregarded. This case was affirmed by the Court of Appeals in 72 Hew York, 269, the court saying, referring to the evidence which had been rejected: Assuming this evidence to be admissible * "" * we think the exclusion does not call for a reversal of the decree. The case was not made out on the proof taken, and the result, we think, would not have been changed if the evidence offered had been admitted.” (See, also, Matter of Hardenburg, 85 Hun, 580.)

We, therefore, consider the testimony thus stricken out as in the ease; and weighing it with the other testimony and evidence adduced at the trial, it clearly and conclusively appears, as it seems to us, that the alleged will of 1900 was not the will of William M. Rice, deceased; that the signatures on that will are not his genuine signatures; that the same are simply tracings made from a genuine signature; and the findings of the surrogate to that effect, and the decree made in pursuance thereof, are the only ones which could have been made.

It is unnecessary to review the evidence or state the reasons which "have induced us to to reach this conclusion. It may not, however, be out of place to call attention to one piece of evidence bearing on this subject. The name of William M. Rice appears four times upon the alleged will of 1900, and upon a critical examination of these four signatures it will be found that they correspond almost exactly — a coincidence which could not possibly happen in the case of four genuine signatures of a person upwards of eighty years of age ; and for this reason it does not need the testimony of experts to demonstrate that these signatures were not genuine, but tracings. The resemblance in each is so striking that it cannot help but be observed upon a bare inspection, and if a measurement be made from any given point in one, it will be found to correspond to the merest fraction o± an inch in the other; in other words, each signature will superimpose the other, a similarity which does not appear in the -concededly genuine signatures introduced in evidence, and which from the very nature of things could hot occur. This fact, taken in connection with the other evidence bearing upon the same subject, is of such a character as to irresistibly lead to the conclusion that, had the. testimony which was stricken out remained in, the surrogate’s conclusion would have, been the same, and, therefore,' the error was entirely immaterial and could not, by any possibility^ have injured the appellant.

Ro question was raised but that the will of-1896 was the last will and testament of William M. Rice, deceased, unless the same had been revoked by the will of 1900, and the proponent of that will having failed to sustain the burden which rested upon him of proving such revocation, the surrogate did the only thing that he could do, viz., admit the 1896 will to probate and refuse to probate the will of 1900.

We have examined the other errors complained of, but do not deem them of sufficient importance to consider them here.

It follows, therefore, that the decree' of the surrogate is right and should be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred.

Decree affirmed, with costs.  