
    In the Matter of the Will of Ebenezer Campbell.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    1. Surrogate’s court—Reversal of decree regarding probate of will—Trial of issues under Code Crv. Pro., §§2588—Order on verdict to be made by surrogate.
    The decree of a surrogate refusing probate of an alleged will was reversed upon a question of fact, and issues were tried at a circuit, under authority of Code Civil Procedure, section 2588, the verdict on the issues being in favor of the proponent. Held, that the circuit court could not order judgment on the verdict, but that it could merely certify the verdict to the surrogate, who only could grant or refuse probate
    2. Same—Costs—When not granted by appellate court may be by SURROGATE.
    
      Held, that the circuit court had not the power to grant costs, that by Code Civil Procedure, section 2589, the power rested primarily with the appellate court, and in case such power was not exercised by it, it devolved upon the surrogate.
    
      A. D. Wait, for app’lt, D, M. Westfall, for resp’t.
   Learned, P. J.

Probate of the will was refused by the surrogate. On appeal, the decree was reversed and issues were ordered to be tried. Code, § 2588. The issues were settled in the order of reversal, and were subsequently tried. The verdict on these issues was in favor of the proponent. Thereupon the proponent obtained an order for judgment and for costs from the circuit judge, from which order the opponents appeal.

The order was irregular. Section 2588 is but a re-enactment, in substance of 2 Revised Statutes, on page 66, section 73 (57), and section 75 (59), shows that the verdict of the jury was to be certified to the surrogate, who was to make his decree accordingly. That is the proper course now. The circuit court, before which the issues are tried, has only to certify the verdict to the surrogate Action thereon should be had by that officer.

There is nothing in section 2585 which contradicts this view. That section makes the appeal from the surrogate’s court similar to appeals from a county court, In such appeals, if the judgment below is reversed, the case is sent back for a new trial. So in this case; only the new trial is to be had before a jury, instead of being had before the surrogate. And a jury trial is had before a court suitable for that purpose.

But after the issues have been decided, then it is the surrogate who grants or refuses probate accordingly.

So the subject of costs is provided for by section 2558, which in its first subdivision refers to the provisions of section 2589. Thus the matter of costs rests with the surroggate, unless the appellate court as acted when it decided the appeal. The right to give costs of the appeal is with the general term, which heard the appeal, section 2589. How those costs are to be payable may be decided by that court, or if such direction is not given, then by the surrogate. But ■the circuit court and special term have nothing to do with the rendering a decree of probate or with the granting of costs.

The order is reversed with ten dollars costs and printing disbursements without any prejudice to the action of the surrogate on the verdict and as to costs.

Landon and Ingalls, JJ., concur.  