
    
      In re Blair’s Will.
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    Temporary Administrator—Power op Surrogate—Transfer to Common Pleas.
    Where proceedings for the probate of a will have been transferred by the surrogate of New York county to the court of common pleas under Code Civil Proc. N. Y. § 2547, which authorizes such transfer for the purpose of trying by jury issues of fact arising therein, the surrogate’s court,' while the proceeding is pending in the common pleas, is not deprived of the power to appoint a temporary administrator in order to preserve the estate, (section 2668;) the power of the common pleas in such case being restricted to the trial of the issues of fact involved and to certain appellate proceedings.
    Appeal from surrogate’s court, Hew York county.
    Application for the probate of the alleged last will of William T. Blair, deceased. The probate of the paper propounded was opposed by Sarah Catherine Blair, the infant contestant herein, and on his own motion the surrogate transferred the proceedings to the court of common pleas. On the trial of the issues in that court a verdict was rendered adverse to the Validity of the will. Pending appeal, an application to the surrogate’s court was made by the contestant for the appointment of a temporary administrator. The surrogate decided that a proper case was made out for such appointment, but that in the present situation the surrogate’s court had no power to take any step in the' proceeding whatever, and accordingly denied contestant’s motion. From this order the contestant appeals. Code Civil Proc. H. Y. § 2547, is as follows: “The surrogate of the county of Hew York may, in his discretion, make an order transferring to the court of common pleas for the city and county of Hew York any special proceeding for the probate of a will pending before him, or in the court over which he presides, and thereupon th*e issues of fact arising in such proceedings shall be heard and determined by said court of common pleas. The order transferring such proceeding is the only authority necessary for the trial in the said court ot common pleas of such issues of fact. Such issues of fact shall be tried by jury, and the verdict can be reviewed only by a motion for a new trial upon the minutes of the judge. Such motion must be made within ten days after the verdict is rendered. A new trial may be granted upon exceptions, or because the verdict was rendered upon insufficient evidence, or is against the evidence or weight of evidence. An appeal lies to the court of general term of the court of common pleas from the order granting or ref using a new trial; and from the order of the general term affirming an order refusing a new trial an appeal lies to the court of appeals. An appeal must betaken by serving written notice of appeal upon the clerk of the court, and upon the attorney for the respondent, within ten days after the service for the appellant of the order appealed from, and of written notice of the entry thereof. The appeal shall be heard upon the case containing all the evidence; and an error in the admission or the exclusion of evidence, or in any other ruling or'direetion of the judge upon the trial may, in the discretion of the court, be disregarded, if substantial justice does not require that there should be a new trial. If a motion to set aside the verdict be not made, or if at the termination of the proceedings for its review the verdict is sustained, the courtof common pleas shall certify to the surrogate’s court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate’s court. The original will shall be returned to the surrogate’s court at the time the verdict is certi fled thereto. The costs shall be taxed in the surrogate’s court, and shall be the same, and shall be awarded in the same manner, as if the proceedings had been heard by the surrogate.”
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    
      Edward T. Wood, (Robert Sewell and J. Aspinwall Hodge, Jr., of counsel,) for appellant. Benjamin Wright, (John A. Taylor, of counsel,) for respondents.
   Barrett, J.

The facts upon which the question of law presented for our consideration depends are correctly and tersely stated by the respondent, as follows: “The probate of the paper propounded in this proceeding as the last will of William T. Blair, deceased, was opposed by the infant contestant herein, and in December, 1890, upon his own motion, the surrogate transferred the proceeding to the court of common pleas. Upon the trial of the issues in that court a verdict was rendered adverse to the validity of the will. Pending appeal, an application to the surrogate’s court was made by the contestant for the appointment of a temporary administrator. The surrogate decided that a proper case was made out for such appointment, but concurred in the respondent’s contention that in the present situation the surrogate’s court had no power to take any step in the proceeding whatever, and accordingly denied contestant’s motion. Prom this order the contestant appeals. The only question now in dispute is whether .the surrogate’s court has power to take any steps in the litigation until the proceedings in the common pleas have been finally certified back to the surrogate’s court.”

We think the surrogate was not by the transfer in question divested of any of the powers conferred upon him by statute, except such powers as by force' of the transfer were expressly conferred upon the court of common pleas. He could doubtless no longer try the issues of fact arising in the special proceeding for the probate of the will. That power, by force of his order of transfer, at once became vested in the court of common pleas. But that power alone was transferred, and that power alone became so vested. The transfer of such other powers as are vested by law in the surrogate’s court, and are not necessary to the due execution of the power transferred, cannot be implied. Thus the authority of the court of common pleas, by force of the order of transfer, is limited to the trial of the issues of fact, and to certain appellate proceedings which may follow. The only implied power is that which is necessary to secure a proper and adequate trial of ihe issues of fact, and a proper and adequate hearing thereafter of the appellate proceedings provided for. The authority of the court of common pleas, under the order of transfer, ends when it finally certifies to the surrogate’s court the verdict upon the issues of fact. If the verdict sustains the will, the latter court may then admit it to probate. The court of common pleas is nowhere authorized by section 2547 to perform that function. There are provisions of the Code (section 2486) authorizing the court of common pleas in certain cases to exercise all the powers and jurisdiction of the surrogate’s court, as where the surrogate is precluded or disqualified from acting, or where the office is vacant, or the surrogate is disabled by sickness, absence, or lunacy. But this jurisdiction must not be confounded with the special and limited jurisdiction conferred upon the court of common pleas by the transfer in question. Under this transfer, standing alone, the court of common pleas acquires none of the general statutory jurisdiction of a surrogate’s court, any more than would the superior court if section 2547. of the Code had specified that tribunal as the transferee. The application for the appointment of a temporary administrator is no part of the proceeding for the probate of the will. It is an independent proceeding for the preservation of the estate (pending litigation) authorized by section 2668 of the Code of Civil Procedure^ and resting in the discretion of the surrogate. That discretion may be exercised where delay necessarily occurs in the granting of letters testamentary or letters of administration, not only in consequence of a contest with regard to the probate of a will, but for any cause whatever. This would seem to be decisive of the present question.

The respondent, however, claims that, because notice of the application for temporary administration must be given “to each party to the special proceeding who has appeared, ” (section 2669,) it follow's that such application is a mere incident to the main proceeding. This is not satisfactory reasoning. The question of notice cannot stamp the proceeding. We might as well say that a proceeding to revoke probate is a mere incident to the original proceeding for probate, if all the original parties are required to be notified of the motion for revocation. They are interested in the matter, and that is all that can be said about it. Nor is the question at all concluded by the expression in section 2547 upon which the respondent relies, that “thereafter”—that is, after the verdict has been finally certified by the court of common pleas to the surrogate’s court—-“all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate’s court.” The expression emphasized W'as plainly inserted for abundant caution. It simply affirms the natural status effected by the return of the verdict to the surrogate’s court; and it places that court in precisely the same position as though the surrogate himself had decided the contest for probate. This and nothing more. All subsequent proceedings to effectuate the verdict are thus to be had in the court specially constituted bylaw for that purpose and for all other-probate purposes, and that court simply continues to exercise its general statutory jurisdiction in the premises. It is quite clear that the form of the expression quoted has no bearing on the question of power, pending the trial-of the issues of fact, to preserve the estate by applying the provisions of law with regard to temporary administration. We think, therefore, that the learned surrogate had full power to exercise the discretion conferred upon him by section 2668 with regard to temporary administration, and that u-pan the facts presented he should, as is conceded, have exercised that discretion in favor of the application. It follows that the order appealed from should be reversed, with costs, and the application remitted to the surrogate for the due exercise of his discretion as to the appointment of one or more competent persons to whom letters of temporary administration should be granted. All concur.  