
    The People of the State of New York ex rel. Albert T. Patrick, Individually and as an Executor Named in the Last Will and Testament of William M. Rice, Deceased, Bearing Date June 30, 1900, Appellant, v. Frank T. Fitzgerald, as a Surrogate of the County of New York, and Others, Respondents.
    
      Writ of prohibition — it will not be issued to prevent a surrogate from, admitting a first will to probate where witnesses to a second will refuse to testify—privilege of witnesses indicted for perjury—adjournment until after their trial under the indictments — the remedy for a refusal thereof is by appeal—objection that the estate will be taken out of the State —where a final order reuses a writ of prohibition the court cannot be further restrained from acting.
    
    Two wills, purporting to have been executed by the same testator, were offered for probate in a Surrogate’s Court, and during the pendency of the probate proceedings the proponent of the instrument purporting to be the last will was indicted for the murder of the testator and for forgery in connection the execution oí the will. Contemporaneously therewith the subscribing witnesses to such instrument were indicted for perjury in testifying concerning its execution in the criminal proceedings against the proponent and also for forgery in connection with the will. In the probate proceedings evidence was given tending to establish the validity and due execution of the first will, but the witnesses of the last will claimed their privilege when sought to be examined with respect to the execution of that will, and the surrogate sustained such claim.
    Thereafter, the subscribing witnesses to the second will still claiming their privilege, the surrogate announced his intention of admitting the first will to probate and of dismissing the proceeding for the probate of the second will for a failure of proof.
    
      Held, that the proponent of the second will was not entitled to a writ of prohibition restraining the surrogate from taking any further proceedings with reference to the probate of either of the wills until after the trial of the indictments against the subscribing witnesses to the second will or until their -evidence could be lawfully obtained;
    That the proponent was not entitled, as a matter of strict legal right, to hare the probate proceedings adjourned until the indictments against the subscribing witnesses were disposed of, or until he could obtain their testimony;
    That the surrogate had power to grant such an adjournment, and that the remedy for an improper refusal to exercise such power was by an appeal to the Appellate Division from the order refusing to grant the adjournment and not by resort to a writ of prohibition;
    That the objection that the executors of the first will were non-residents, and that if the will was admitted to probate they might remove the testator’s property from the State of New York before the proponent of the second will was able to establish the validity of that will, did not go to the jurisdiction of the surrogate;
    That the surrogate acted properly in sustaining the privilege claimed by the subscribing witnesses to the second will.
    
      Semble (per Ingraham, J.), that under section 2100 of the Code of Civil Procedure, where a final order refusing an absolute writ of prohibition is entered, the Special Term has no power by order to restrain the court or judge whose jurisdiction was attacked from proceeding in the matter in question during the pendency of an appeal from the final order denying the writ.
    Appeal by the relator, Albert T. Patrick, individually and as an executor, etc., of William M. Rice, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1902, denying the relator’s application for a writ of prohibition absolute and quashing and dismissing an alternative writ of prohibition theretofore issued in the action.
    The alternative writ shows that proceedings have been duly instituted and are pending undetermined in the Surrogate’s Court of the county of New York for the probate of two alleged wills of William M. Rice, deceased, bearing date respectively on the 26tli day of September, 1896, and 30th day of January, 1900; that the subscribing witnesses to the last will have been indicted for forgery and perjury concerning the same, and upon that ground have refused to testify with reference to the execution thereof, and that the surrogate has sustained their claim of privilege; that the relator is the proponent of the last will, and that the Surrogate’s Court “without taking such and other evidence is about to render a decree admitting to probate said will of 1896 and dismissing the proceedings for the probate of said will of 1900.” The alternative writ required the respondents and the surrogate to show cause why they should not be absolutely enjoined and restrained from taking further proceedings with reference to the probate of either of said wills until after the trial of these indictments against the subscribing witnesses or until their evidence can be lawfully obtained. The returns raise no issues of fact, but challenge the sufficiency of the moving papers to warrant the granting of an absolute writ. The alternative writ was granted on the affidavits of the attorney for the relator of the subscribing witnesses who have been indicted, and of one Schoffin and one Cantwell. The affidavit of the attorney shows, among other things, that the testator died on the 23d of September, 1900, leaving property worth more than $5,000,000 ; that three executors are named in each will, two being the same, John D. Bartine being the third in the first and the relator being the third in the last; that the will of 1896 was filed on the 12th day of October, 1900, and the other on the 30th of November thereafter, and applications for their probate were duly made by Bartine and the relator respectively; that the first will left the bulk of the estate to the William M. Rice Institute for the Advancement of Literature, Science and Art, a corporation of the State of Texas; that in the second will this corporation was given a legacy of a quarter of a million, and the bulk of the estate was left to the relator; that the relator and the heirs and next of kin of the testator filed objections to the probate of the first will, and Bartine and others filed objections to the probate of the second will; that the executors of the first will are all non-residents and it is provided that they shall not be required to give security ; that as the result of criminal proceedings instituted against the relator for the murder of the testator and for forgery in connection with the second will, he was indicted for such murder and forgery on the 25th day of April, 1901, and that contemporaneously therewith criminal proceedings were instituted against the subscribing witnesses to the last will for perjury in testifying concerning its execution in the criminal proceedings against the relator and for forgery in connection with it also; that the relator has been convicted of murder and an appeal from such conviction is pending in the Court of Appeals; that the indictments against the subscribing witnesses have not been brought to trial; that on the 22d day of June, 1901, before any evidence was taken, the surrogate adjourned these probate proceedings on account of the pendency of said criminal proceedings until November, 1901, that on the twenty-third of November last a settlement was made between the heirs and next of kin and the said William M. Rice Institute by which their objections to the probate thereof were to be withdrawn and said institute should pay them about $500,000 ; that two days later the hearing on the probate of said wills came up, and the subscribing witnesses to the first will were examined and the hearing adjourned until the ninth of December ; but the making of the settlement was not disclosed and the objections of the heirs and next of kin were not withdrawn until the 7th day of January, 1902; that no further proceedings were taken in the Surrogate’s Court until the 16tli day of April, 1902, after the trial and conviction of the relator; that on said last-mentioned day the present attorney for the relator, who had only recently been retained, had been previously informed by the counsel who theretofore represented the relator on the probate proceedings that a hearing would be forced at that time, applied for an adjournment on the ground of the pendency of the criminal proceedings against the relator ; that the subscribing witnesses who had been indicted would claim their privilege and refuse to testify, and that he was not familiar with the various litigations and was not prepared to proceed ; that the surrogate denied the motion, but stated that the right to cross-examine the subscribing witnesses to the first will, who had given the formal proof as to its execution, had been reserved to the relator; that the attorney for the relator in applying for said adjournment, stated that he did not waive his right to cross-examine said witnesses; that he then called the subscribing witnesses who had been indicted and upon being sworn and interrogated concerning the execution of the will they refused to testify, upon the ground that their answers might tend to incriminate them and the surrogate sustained their claim of privilege; that thereupon he contended that the surrogate had no power to proceed to a decree admitting either will to probate and asked leave to submit a brief on the question, whereupon the surrogate stated, “ That would be a matter that would come up in the final argument when the whole case is in; ” that thereafter on six hearings, from April sixteenth to May first, the counsel for the proponents of the first will called and examined witnesses as to their opinion of the genuineness of the signature to the la'st will; that while cross-examining these witnesses he had handwriting experts in court whom he announced that he intended to call as witnesses in rebuttal later; that he asked that one of these witnesses be recalled or that his testimony be stricken out and on the first day of May announced that he would apply “ in due course ” for an order to take the deposition of the witness who had departed from the State; that on the last-mentioned day counsel for the proponents of the first will moved, at the close of the examination of the last witness called by the proponents, for a decree admitting to probate the first will and dismissing the petition for the probate of the last will; that he objected to this motion and claimed the right to call witnesses in rebuttal and stated that he expected “ in the due course of the proceedings ” to introduce testimony under the objections filed by the relator to the first will, but that the surrogate announced that he was prepared to admit the first will to probate and dismiss the proceedings for the probate of the last will for a failure of proof on the part of the proponents of the factum of the will of 1900 ; that the counsel for the proponents offered to withdraw his motion if the witnesses would withdraw their privilege and testify and in this the surrogate acquiesced; that after a protracted argument the surrogate consented to adjourn the proceedings until the 10th day of May, 1902, stating that if on the adjourned day the subscribing witnesses still claimed their .privilege he would admit the first will to probate and deny the probate of the second will and decline to take further testimony notwithstanding the fact that the relator’s attorney asked the right to call witnesses who would testify to the genuineness of the signature to the last will and a witness who would testify that the testator informed him that he was going to and had made a new will; that he in good faith intends to contest the first will and to show the validity of the second will; that in his opinion the first will is void and the Rice Institute cannot take, under the laws of Texas; that if the first will is admitted to probate the property will be removed from the jurisdiction of the court and that the relator will be without remedy and that the proposed action of the surrogate is in excess of his jurisdiction.
    The extract from the stenographer’s minutes quoted in the affidavit of the attorney for the relator does not show that he informed the surrogate that he desired to introduce further evidence. These are the only material facts shown.
    
      John O. Tomlinson, for the appellant.
    
      William B. Uornblower, for the respondents.
   Laughlin, J.:

• The writ of prohibition only lies where there is a want of jurisdiction or where a court, judge or other tribunal is proceeding in excess of the jurisdiction conferred. (Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Jones v. Sherman, 66 App. Div. 231; People ex rel. Smith v. Doyle, 28 Misc. Rep. 411; 44 App. Div. 403; 162 N. Y. 659 ; Thomson v. Tracy, 60 id. 31; People ex rel. Mayor v. Nichols, 79 id. 582; People ex rel. Oakley v. Petty, 32 Hun, 443 ; People ex rel. Sprague v. Fitzgerald, 15 App. Div. 539 ; Smith v. Whitney, 116 U. S. 167.)

We find it stated by some judicial writers, following the old English cases, that the writ may also be issued to prohibit the court, judge or other tribunal from proceeding contrary to the general laws of the land.” This doubtless means nothing more than passing upon personal or property rights without a hearing. It embraces cases where a petition, pleading or objection is duly served or filed in accordance with the settled law or practice, and a court, judge or other tribunal having jurisdiction and whose duty it is to hear and determine the matter is proceeding to a determination without a hearing. (Hovey v. Elliott, 167 U. S. 409, affg. 145 N. Y. 126.) That, I take it, would be an excess of jurisdiction, and I do not understand that the phrase “ contrary to the general laws of the land,” as thus used by the courts, means anything more than an excess of jurisdiction. It is not the office of a writ of prohibition to regulate the admission or rejection of evidence or the proceedings before an inferior court, judge or other tribunal having jurisdiction of an action or proceeding. Where jurisdiction exists errors of law or procedure must be corrected by such appeal or other review as the law affords. (People ex rel. Mayor v. Nichols, supra; People ex rel. Smith v. Doyle, supra; People ex rel. Oakley v. Petty, supra; People ex rel. Reynolds Card Mfg. Co. v. Fourth Dist. Court, 13 Civ. Proc. Rep. 134.)

If the relator’s right to the absolute writ depends upon the sufficiency of the facts recited in the alternative writ, as is the case in mandamus proceedings, it scarcely needs any argument to show that those facts are insufficient. The alternative writ merely recites that the subscribing witnesses to the will of 1900, who have been indicted for perjury, have refused to testify to the execution of that will, and that the surrogate has sustained their claim of privilege and is about to dismiss the proceedings for the probate of that will and admit the other to probate. The surrogate and respondent were required to show cause against an absolute writ enjoining both probate proceedings until the testimony of these witnesses is obtained.

It is clear that the surrogate has jurisdiction. What adjournment, if any, should be granted rests in the sound discretion of the Surrogate’s Court, subject only to review by direct appeal to the Appellate Division. There is no presumption of law that either will is valid, and neither can be admitted to probate without competent proof of its due execution. (Matter of Cameron, 47 App. Div. 120; affd., 166 N. Y. 610 ; Matter of Lasak, 131 id. 624.)

The relator is not entitled as matter of strict legal right to have the probate proceedings adjourned until the disposition of either of the criminal prosecutions. (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; People ex rel. Adams v. Westbrook, 61 How. Pr. 138.) The verdict or judgment in the criminal cases would not be res adgudicata on any question in the probate proceedings. ISTor is the relator as a matter of strict legal right entitled to have the probate proceedings adjourned indefinitely to enable him to obtain this testimony. The Surrogate’s Court undoubtedly has power to postpone these probate proceedings until after the trial on the indictments against the witnesses; but if this discretion to adjourn or refuse the adjournment be erroneously exercised or abused, the remedy is by appeal, and not by resort to the writ of prohibition.

It is not shown in the alternative writ that the first will has not been duly proved. The Surrogate’s Court has jurisdiction to determine whether it has given the relator, who is the proponent of the will of 1900, a reasonable opportunity to make proof of its due execution, and whether the proceedings should be dismissed or probate denied for failure of proof, or continued to afford him an opportunity to present further evidence. The dismissal or denial of probate for failure of proof will not be a dismissal upon the merits. It will merely dispose of the present proceedings and be a determination that -no satisfactory proof that the alleged will of 1900 is the last and testament of the testator has been presented.

It seems to be assumed by the counsel for the respondent, as well as the appellant, that the right to the absolute writ depends, not on the recitals in the alternative writ, but on the affidavits upon which it was granted, and, without stopping to examine the question, that may be assumed for the purpose of this appeal.

We think the affidavits presented by the relator fail to show sufficient facts to entitle him to the absolute writ. It thereby appears that the will of 1896 has been duly proved and that evidence has been given tending to show that the later will is a forgery. When the relator’s present attorney first appeared in the probate proceed-, ings the surrogate informed him that the right to cross-examine the subscribing witnesses to the first will had been reserved to the relator; but it does not appear that he asked to examine them then or on any of the subsequent adjourned hearings. Nor does it appear that the relator at any time offered any evidence with reference to the validity of either will or asked to have his witnesses examined. It does appear that lie informed the court that he intended to produce evidence; but that is not sufficient to afford a basis for issuing an absolute writ of prohibition against the surrogate upon the theory that if the relator does in the future offer competent evidence it will be rejected, even though his right to introduce testimony has not been waived or lost. There is nothing to justify the inference that the learned surrogate has not acted judicially and with perfect fairness throughout the probate proceedings. His remarks indicate that he thinks it is about time that the hearings on these proceedings should be concluded, but the inference that the surrogate contemplates depriving the relator of any of his legal rights is not warranted. It may be that the surrogate entertains the belief that the relator is responsible for the refusal of the subscribing witnesses to testify. It appears that these witnesses have testified with reference to the execution of this will on the criminal proceedings instituted against the relator. The entire record of these proceedings and of the probate proceedings are not before us, and we cannot say that there is nothing to warrant such an inference. However this may be, the learned surrogate was right in sustaining the privilege claimed by the witnesses. (People ex rel. Morse v. Nussbaum,55 App. Div. 245 ; People ex rel. Toy v. Mayer, 71 Hun, 182; People ex rel. Taylor v. Forbes, 143 N. Y. 219.)

It is contended by the relator that, inasmuch as the executors of the will of 1896 are all non-residents, if that will is admitted to probate they may remove the property from the State before he is able to establish the validity of the will of 1900. This does not go to the jurisdiction of the surrogate. Moreover, notwithstanding the fact that the will relieves the executors from giving a bond, the surrogate is authorized on account of their non-residence to require security to be given, and there is no reason to apprehend that the rights of the relator will not be properly protected. (Code Civ. Proc. §§ 2636, 2637, 2638; Estate of Demarest, 1 Civ. Proc. Rep. 302.)

If the relator has not lost his rights by failing to introduce his evidence on the objections filed to the probate of the will of 1896, and on his petition for the probate of the will of 1900 at the proper time, he will doubtless be afforded an opportunity to do so. Counsel for the relator is doubtless right in his contention that the relator is entitled on account of his claim as executor of the will of 1900 and as devisee thereunder to contest the validity of the will of 1896 unless lie has lost his rights by not doing so at the proper time. (Code Civ. Proc. § 2617.) While he may be unable to establish the validity of the will of 1900 in the manner required by the statute to authorize its probate, it by no means follows that he is not interested in the estate. He may be able to establish the validity of the will by common-law proof which would be accepted in an action in the Supreme Court concerning the ownership of the realty of the testator at least. (Upton v. Bernstein, 76 Hun, 516, 520; Matter of Keleman, 126 N. Y. 79.) It does not follow, therefore, that because he is unable to have the will of 1900 admitted to probate he is not interested in the estate. But there is no evidence that the surrogate has ruled that the relator is not entitled to contest the first will.

We are asked to construe a remark of the learned surrogate that the proponents of the will of 1896 were entitled to a decree admitting it to probate by default as indicating an intention on his part to enter a decree that will recite that the relator has defaulted and thereby preclude him from appealing. The relator has appeared in the proceeding and will be entitled to appeal from any decree that may be entered. Section 2568 of the Code of Civil Procedure relates only to a default in appearing. The learned surrogate evidently meant by default the failure of the relator to produce evidence at the proper time, and the inference is not justified that he contemplates entering a decree reciting that it was made on the relator’s default.

It is suggested by counsel for relator that, if the writ be refused, it will be taken as an indication that, in the opinion of this court, the surrogate may properly dismiss the proceedings for the probate of the will of 1900 and admit to probate the will of 1896. That would be an unwarranted inference. We refrain from expressing any opinion on questions of evidence, practice, procedure and discretion until they are properly before us by appeal. We merely hold that the surrogate has jurisdiction and is not proceeding in excess of his jurisdiction in a manner to justify issuing an absolute writ of prohibition.

The alternative writ was, therefore, properly quashed and dismissed and an absolute writ properly denied. The order should be affirmed, with fifty dollars costs and disbursements, and the surrogate and respondent are authorized to proceed in the matter of probating said wills as if the alternative writ had not been issued.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.

Ingraham, J. (concurring):

I fully concur in the opinion of Mr. Justice Laughlin and simply wish to add that, in my opinion, the provision in the order appealed from that the stay of proceedings contained in the alternative writ of prohibition be continued pending an appeal to the Appellate Division of this court from the final order in this proceeding is entirely unauthorized. A writ of prohibition prohibits a court from proceeding in a matter then before it. The only authority that the Supreme Court has to restrain a court from so proceeding is by a writ of prohibition. The court below granted an alternative writ, but, upon a return being filed, it refused to grant an absolute writ. The order refusing the absolute writ was a final order under section 2100 of the Code of Civil Procedure, which provides that “where a final order is made against the relator it must authorize the court or judge and the adverse party to proceed in the action, special proceeding or matter as if the alternative writ had not been issued.” Heither the Code nor the practice authorizes the Special Term, when a final order refusing an absolute writ is entered, to prohibit a court from proceeding by order, either pending an appeal from the order refusing the absolute writ or for any other period of time. The Special Term was required by the provisions of the Code applicable to a writ of prohibition, upon the return being filed, to determine whether or not an absolute writ of prohibition should issue. Upon its determination that such an absolute writ should not issue, tne final order abrogates the alternative writ, and the prohibition contained in that writ is at an end. The Supreme Court was then without jurisdiction to continue the prohibition contained in the alternative writ by order.

I think it necessary to make this statement to avoid the implication that the practice adopted by the Special Term is in any sense approved.

Patterson, McLaughlin, Hatch and Laughlin, JJ., concurred.

Order affirmed,- with fifty dollars costs and disbursements.  