
    In the Matter of the Probate of the Alleged Last Will and Testament of Charlotte Miller, Deceased. Susie Norton and Others, Appellants; Mary A. Hoelzle and Jennie E. Lewis, Respondents.
    First Department,
    December 30, 1910.
    Court—trial of issues of fact in proceeding for probate— Special Term cannot dismiss proceeding.
    Where issues of fact arising in a proceeding for the probate of a will have been directed to be tried at the .Trial Term of the Supreme Court by the Appellate Division, pursuant to section 2588 of the Code of Civil Procedure, the Special Term has no power to dismiss the proceeding for failure to prosecute.
    Appeal by Susie Morton and others, from an order of the ' Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 26th day of October, 1910, dismissing the proceeding for the probate of the last will and testament of Charlotte Miller, deceased, because of neglect to prosecute.
    
      Joseph Pettreich and John H. Judge of counsel, for the appellants.
    
      William P. Maloney of counsel, for the respondents.
   Miller, J.:

The decedent died on the 2d day of March, 1901, On December 16, 1901, a decree of the Surrogate’s Oojart was entered, refusing probate of her will. On an appeal, to this court the decree was reversed (72 App.- Div.' 615), and as section 2588 of the Code of Civil Procedure required, stated questions of fact were directed to be tried by a jury. Thereafter there were two jury trials, the last one in December, 19.02, each resulting in a disagreement. Mo excuse for the long delay that has since intervened is presented, except that some of the parties have died and that negotiations for settlement have been pending. That,' however, does not excuse the delay, and if this were an action pending in the Supreme Court, we should have no hesitation in affirming the order. But we are of the opinion that the Special Term had no power to dismiss the proceeding.

This proceeding has been sent to the Trial Term of the Supreme Court merely for the trial of stated issues by a jury. When a verdict shall finally be rendered, if not set aside, it will have to be certified to the Surrogate’s Court for the entry of a decree granting or refusing probate as the case may require. ■ The Special Term of the Supreme Court had no jurisdiction over the proceeding and the, Trial -Term has jurisdiction only to try the questions as directed by this court, and upon the rendition of a verdict to pass upon a motion to set it aside, and ultimately to certify the result to the Surrogate’s Court. (Matter of Murphy, 79 App. Div. 541-544.) Said section 2588 of the Code of Civil Procedure provides: “Such an order” i. e., an order of the Appellate Division, reversing the surrogate’s decree “ must state distinctly and plainly the questions of fact to be tried, and must direct the trial to take place either at a Trial Term, of the 8uprem,e Court, specified in the order, or in the County Court of the county of the surrogate.” (Italics are mine.)

The learned counsel .for the respondent has failed to point out. any provision, of the statute conferring jurisdiction on- the Special Term of the Supreme' Court to dismiss such a proceeding. As well might .the Special Term dismiss it if no questions whatever had been sent to the Trial Term of the Supreme Court for trial by a jury.

It is claimed that the exercise of jurisdiction in this case is supported by the following decisions in this State : Heermans v. Hill (2 Hun, 409); Matter of Friedell (20 App. Div. 382); Matter of Lasak (131 N. Y. 624). \ In the first case it was held that the surrogate had inherent power to allow the proponent to withdraw and to leave to others the assertion of the validity of the will. In the second case it was held that the surrogate had the power to dismiss a petition for revocation of probate on the ground that the petitioner had willfully refrained from serving the necessary parties with citation before the return day. In the last case the proponent and certain of the contestants asked the surrogate to dismiss the proceeding, but, upon the objection of other parties to the proceeding, the motion was, as the Court of Appeals held, properly denied. While those cases have no application whatever to the case in hand, it may not be amiss to quote from the opinion delivered in the last case to show the standing of the parties in a probate proceeding. After stating that it was a proceeding in rem, in which all of the parties could become actors, the court said : “ But so long as any person cited is before the surrogate in support of the will, he has no right, upon the motion of any other party, arbitrarily to arrest or dismiss the proceeding; After the proceeding is once instituted, and the parties cited are before the surrogate, it is not solely the proceeding of the proponent. It is a proceeding in behalf of all the parties interested to prove the will. If the proponent should die, the proceeding would not abate. If he left successors to his interest, they would have to be brought in and be made parties to the proceeding as persons interested in the estate. If the proponent should refuse to introduce any evidence in support of the will, any other party could produce and examine the witnesses.” It would seem that, if there has been an unreasonable delay, it was as much the fault of one party as of another. The case is not at all analogous to an action in which the defendant need only resist the attack of the plaintiff. This proceeding should be brought to a close ; but it is within the power of any one of the parties to see that that is done.

The order is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Glarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten- dollars costs and disbursements, and motion denied, with ten dollars costs.  