
    Matter of Proving the Last Will and Testament of Jacob Vetter, Deceased.
    
      (Surrogate's Court, New York County,
    
    
      April, 1916.)
    Trial—In contested probate proceeding—New Surrogates’ Law—When MOTION FOR NEW TRIAL DENIED.
    The course of a jury trial in a contested' probate proceeding rests largely in the discretion of the surrogate presiding at the trial, and where the order of proof and the conduct of the trial on the issues submitted to the jury under the new Surrogates’ Law were correct a motion for judgment on the findings of the jury in favor of the will will be granted and a motion for a new trial denied.
    The practice on the trial of contested probate proceedings with juries under the new Surrogates’ Law indicated.
    Proceeding upon the-probate of a will.
    Lewis S. Goebel, for proponents.
    Low, Miller & Low, for contestants.
    Morris Blau, for Herman Lips.
   Fowler, S. —

The motions for judgment on the findings of the jury and for .a' new trial having come on to be heard, pursuant to the practice indicated in Matter of Dorsey (94 Misc. Rep. 566), I have examined the record and find no error of substance. The order of proof and the conduct of the trial in this matter on the issues submitted to the jury under the new law regulating contested probate proceedings before juries were correct. The order of proof at common law is .always in the discretion of the trial judge presiding at jury trials. The surrogate can have no less, no greater, or no different powers, I presume, in jury trials held in this court. In order that contested probates conducted with juries may not degenerate into unlicensed and irregular trials, some prescribed order 'of proof is essential. Unfortunately there is no express precedent or law regulating trials in contested probate proceedings tried with juries. The nature of the issues' to be submitted to the jury in conformity to the new law ¡are in the form of questions, f have considered this point in Matter of Plate (93 Misc. Rep. 423), and until the new practice is passed on by the higher tribunals I shall continue to be guided by the reasons there stated. The pleadings in Surrogates’ Courts by the Surrogates’ Law seem to be merged in the questions directed to be submitted to the jury (Matter of Plate, 93 Misc. Rep. 423 ; General Rules of Practice, 31 ; Rule VII, Surrogate’s Court, N. Y. County ; Matter of Eno, 94 Misc. Rep. 100), and they do not figure on the trial of the contested probate proceeding before a jury. Contested probates carried on under the new Surrogates’ Law of 1914, with the aid of a jury, thus offer a singular anomaly to the course of the common law. The written pleadings in this court have no part in the trial. The issues framed for submission to the jury are directed to be in the shape of questions to be ¡answered by the jury. The questions are, by the new law, made a substitute for pleadings. There is now no statute regulating the procedure or burden of proof, in contested probates before juries as was formerly the case under section 2653a (old Code of 1913). The course of such a trial must, therefore, rest largely in the discretion of the trial surrogate presiding at the trial term- of this'court in this county, where jury trials ¡are most frequently demanded. By reason of the omission in the new Surrogates’ Law I 'have felt it incumbent on me to regulate the order of proof and the general procedure on the trial in contested probate proceedings with juries. I require the proponent of the will, after a brief opening on the part of counsel, pursuant to general rule 29, to proceed to prove the requirements exacted by the Statute of Wills for testamentary dispositions of property, and I limit strictly the cross-examination of the attesting witnesses to matter brought out on the direct examination. When the requirements of the Statute of Wills are proven the proponent ordinarily rests. If the will is not proved by proponent prima facie the trial necessarily comes to an end. If the will is proved prima facie, then the contestant takes up the burden of proceeding further. Contestant has first an opportunity to disprove factum if he can, and next to establish by proof the substance of his affirmative pleas, or rather the affirmative of the questions put at contestant’s particular request to the jury, for, as I said, there are no pleadings in this court in jury trials in probate proceedings. When the contestant has rested the proponent then offers his adminicular proofs, or his proofs in rebuttal, as the case may require. The burden of proof and the summing up I regulate as best I can according to the real right to the affirmative positions on the questions to be submitted to the jury. In this way some sort of order .and method of trial is preserved. If there is any binding authority or precedent for this court indicated I have not found it, but it seems, nevertheless, to conform in some measure with the course of the common law, which, I, take it, is a necessary adjunct to trials with juries held even in this court. Any other course than that indicated produces very bad results and may prove most unjust to the testamentary power in general. A haphazard and unregulated trial in a contested probate proceeding before a jury is full of danger to dispositions of property by last will and testament and should not be .allowed. Where there is no dispute or disproof of the due execution of the will propounded, the questions framed for the jury involving execution should never be submitted to the jury without an unequivocal direction by the surrogate to answer them in the affirmative. If there is no issue of fact on execution of the testamentary paper to submit to the jury such questions, because there is another distinct issue for them, would be both illegal and confusing, and unnecessarily jeopardize the will propounded. I know of no judicial action more in conflict with common-law principles than to submit to a jury some matter of which there is no disproof, or which is not really contested. Such an outrage upon legal order would call for summary vindication upon the part of some competent authority in any state based on law and order. If there is an affirmative issue of undue influence, for example, and no issue of last will and testament, the issue of undue influence should alone be left to the jury. Any other course is plain error under the established law, not only of this State, but of all other common-law States. It is the right of any party to a contested probate proceeding to ask for a direction for verdict by the surrogate when the proof is altogether unilateral, and it would be fatal error on the part of the surrogate to refuse the direction. The answers of the jury to the questions propounded to them in contested probate proceedings are not made conclusive on the surrogate when the trial is in this court, as I showed in Matter of Eno (94 Misc. Rep. 100), and Matter of Plate (93 id. 423). The surrogate is still by the statute made solely responsible for the decree of probate. (Code Civ. Pro., § 2614.) The new Surrogates’ Law expressly reserves to the surrogate the duties and obligations of a probate judge-. By the clear mandatory terms of the act he cannot .admit any will to probate until he himself is satisfied with the genuineness of the will and the validity of its execution. (Code Civ. Pro., § 2614.) This is the great and cardinal section of the new law in so far as it relates to probate proceedings in this court. Section 2614 of the Code of Civil Procedure cannot be brushed aside by implication, nor'can it be minimized without .a violation of all. the principles of interpretation of acts of the Legislature. The sections relating to the submission of issues to the jury are to be read in connection with section 2614. All sections of an act are to be read together -and harmonized, if possible. Eone of them can be construed disjunctively, abstracted "from all the residue of the context of the act as if enacted’separately. Every legislative act must be read as a whole, and all parts given effect, if possible. (Allen v. Stevens, 151 N. Y. 122, 145 ; Clary v. Fitzgerald, 155 App. Div. 659, 664.) There is nothing in the Code which makes a verdict of a jury in a Surrogate’s Court conclusive on the surrogate in -a probate proceeding unless the trial is had in the Supreme Court.-. Section 970 of ,the Code of Civil Procedure refers only to actions and not. to special proceedings, which -a contested probate proceeding is. It cannot be incorporated by relation in the Surrogates’ Law, because it is inconsistent with section 2614 of the Code of Civil Procedure, which is jurisdictional and mandatory in all contested probates in this court. (Matter of Plate, 93 Misc. Rep. 423 ; Matter of Dorsey, 94 id. 566 ; Matter of Eno, 94 id. 100.) In this matter there was no error on the trial, and the motion for judgment on the findings of the jury must, therefore, be"granted and the motion for a new trial denied. The decree will provide for the probate of the will as -a will of real and personal property.

Probate decreed.  