
    In the Matter of Proving the Last Will and Testament of Lizzie H. Holme, Deceased. Edwin C. Hall, Petitioner, and Others, Appellants; Leicester Holme, Contestant, Respondent.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      April 9, 1915.)
    SURROGATE’S COURT-CONTESTED PROBATE PROCEEDINGS IN NEW YORK county—Waiver of right to jury trial—Validity of order granted-BY ONE SURROGATE IN VIOLATION OF STIPULATION MADE BEFORE THE OTHER 1 SURROGATE-MOTIONS AFFECTING CONTESTED PROBATE PROCEEDINGS, WHERE. MADE.
    Where, upon a proceeding before a surrogate of the county of New York, at Trial Term, for the probate of a will, the contestant asked for an adjournment which was granted, uopn the ground that his counsel was ill, and the parties stipulated to waive all issues raised by the objections, except the due execution of the will, an order, granted by another surrogate of the county before the adjourned date, upon the application: of new counsel retained by the contestant, permitting the filing in lieu of the original answer another one identical in terms, except that it demanded a jury trial, is a breach of the stipulation and in violation of the provision of the Code of Civil Procedure, providing that a demand for a jury trial must be made with the objections.
    Motions directly affecting contested probate proceedings on the calendar for trial should be made in the Trial Term.
    Appeal by Edwin C. Hall, petitioner, named as executor in the last will and testament of Lizzie H. Holme, deceased, and by others, beneficiaries under said will, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 27th day of January, 1915, granting a motion by the contestant for leave to amend his answer and to have a jury trial.
    Payson Merrill of counsel (Charles Thaddeus Terry with him on the brief), Merrill & Rogers, attorneys, for the appellant Hall.
    William R. Conklin of counsel (Harry D. Holden with him on the brief), Conklin. & Reid, attorneys, for the residuary legatees, appellants.
    J. Mayhew Wainwright, for the appellant American Society for Prevention of Cruelty to Animals.
    Samuel J. Wags tail, special guardiaii for the appellants Annie Molloy, Jr., and others..
    Edmund L. Mooney of counsel (John Delahunty, attorney), for the appellant, respondent.
   Clarke, J.

On June 20, 1914, Mrs. Lizzie H. Holme died leaving a will executed by her on July 22, 1907. After a variety of gifts to relatives, friends and charitable organizations, testatrix provided: I have made the above disposition of my property conscious of the fact that I have a living husband and also other relatives for whom I have made no provision in this my Last Will and Testament, and it is my express determination that they shall not have any share or benefit under this, my Last Will and Testament, nor in any manner share in my estate.”

The executors named in the will offered the paper for probate by petition dated September 22, 1914, and thereafter the answer of Leicester Holme, the surviving husband of the testatrix, verified on the 28th of October, 1914, was filed. This answer set up that the paper offered for probate was not the last will and testament of said decedent, that it was not duly executed by her and that she did not publish the same as her will in the presence of the witnesses whose names were subscribed thereto. That she did not request said witnesses to be witnesses and that they did not sign in her presence or in the presence of each other. That on said 22d day of July, 1907, the said decedent, Lizzie H. Holme, was not of sound mind or memory or mentally capable of making a will. That the said paper writing was not freely or voluntarily made or executed by the said Lizzie H. Holme as her last will and testament, but that the said paper writing purporting to be her will was obtained and the subscription and publication thereof, if it was in fact subscribed or published by her, was procured by fraud and undue influence practiced upon the decedent by certain persons acting in concert whose- names are at present unknown to this contestant.

That the paper propounded for probate herein is invalid as a last will and testament and is illegal and void in all respects.

Wherefore, the above-named contestant prays that this proceeding may be dismissed, with costs.

Ho one else filed objections.

On the thirty-first of October an order was entered setting the case down for trial on the first Monday of January, 1915. On the call of the calendar at the Trial Term by Mr. Surrogate Fowleb on the first Monday, namely, the 4th day of January,, 1915, the attorney for the contestant applied for an adjournment on the ground of the illness of counsel. Thereupon the trial was adjourned to the second Monday, the eleventh of' January. Upon the case being called that day the attorney for the contestant said that as counsel’s illness still continued,, he would ask for an adjournment until the following Monday, and would state that he had decided to waive all issues raised by the objections except one, and that in case his counsel did not so improve by the following Thursday as to afford assurance that he would be able to try the case on Monday, the eighteenth, he would at once retain other counsel and proceed with the trial on that day. Thereupon counsel for the proponents said that to avoid all possible misapprehension he would say that that one issue was the due execution of the will and that he consented to the adjournment on that stipulation and on the further understanding that the case should proceed to trial on the following Monday, and thereupon the surrogate remarked: “We have only one issue to try, the due execution of the will,” and adjourned the trial to the eighteenth.

On Wednesday, January thirteenth, new counsel was retained by the contestant, and on Thursday, January fourteenth, this counsel obtained an order to show cause from Surrogate Cohalatst why an order should not be made permitting the contestant to withdraw the answer heretofore filed by him and to file an answer de novo in the form annexed and directing the trial by jury of the issues raised by such answer. The proposed new answer was identical with that already served except there was added thereto the following: “ Leicester Holme, the contestant herein, demands a jury trial of the issues raised by this answer.” Upon the return of this order to show cause the proponents of the will appeared and asked that it be sent to Trial Term where the case then was and where a stipulation had been entered into for hearing. This was denied and at the conclusion. of the argument the surrogate announced that he would grant the motion and set the case down for trial by jury on February 1, 1915, Ho order was presented for signature until Monday, the eighteenth, and then the surrogate directed that notice óf settlement be given. On the same morning when the trial calendar was called by Surrogate Fowler the attorney for the contestant asked that the matter stand over until two o’clock when his new counsel could be present, which was done. At two o’clock proponents’ counsel claimed that the order asked of Surrogate Cohalaw could only be made at the Trial Term and that even if signed it was void. Counsel for the contestant claimed that proponents’ counsel was guilty of contempt-in pressing the case for trial after the decision which had been made. Surrogate Fowler directed the trial to proceed and thereupon contestant with counsel and attorney withdrew from the court room. Subscribing witnesses were thereupon examined and the will admitted to probate. The order here appealed from was the order of Surrogate Cohalax made on January 26, 1915, and filed nunc pro tunc as of January fifteenth permitting the contestant to file in lieu of the answer theretofore filed another one identical in terms except that it demanded a jury trial and ordered that the trial be had on the 1st day of February, 1915, of the controverted fact and that the order dated January 22, 1915, be respectfully referred to Mr. Surrogate Fowleb.

Section 2537 of the Code of Civil Procedure (added by Laws of 1914, chap. 443) provides: Whenever in any proceeding in the Surrogate’s Court, the order or decree of the court will determine any issue or fact as to which any party has a right of trial by jury in any court, such trial shall be deemed to be waived, unless such party, personally, or through his attorney, guardian, committee, or special guardian appears and seasonably demands the same, in which case such trial shall be had according to the practice of such court. * *

Section 2538 (as amd. by Laws of 1914, chap. 443) provides : “ In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, and in any proceeding for the probate of a.will in which any controverted question of fact arises, the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same.”

Section 2617 (added by Laws of 1914, chap. 443) provides: “Any person interested in the event as devisee, legatee or otherwise, in a will or codicil offered for probate; or interested as heir-at-law, next of kin, or otherwise, in any property, any portion of which is disposed of or affected * * * by a will or codicil offered for probate; * * * may file objections to any will or codicil so offered for probate.

“ Such objections must he filed at or before the close of the testimony taken before the surrogate on behalf of the proponent, or at such subsequent time as the surrogate may direct, and if a jury trial of any issue is desired the same shall be demanded in the objections.”

It is clear that the demand for a jury trial had not been seasonably made because it had not been demanded in the objections, and, therefore, it had been waived under the express provisions of the statutes quoted. To permit the withdrawal of objections from the files in order that the precise objections as made might be refiled with the addition of a demand for a jury trial; the time allowed for such demand having long since expired, was an obvious attempt to avoid the statute which is not to be approved.

We are also of the opinion that under the division of the work of the Surrogates’ Courts as provided in section 2504 of the Code of Civil Procedure (now section 2506, as amd. by Laws of 1914, chap. 443), motions directly affecting contested probate proceedings on the calendar for trial should have been exclusively in the Trial Term. (See matter of Martin, 80 Misc. Rep. 17.)

But the main reason why the order appealed from was erroneous is that it was made on a breach of a stipulation made and entered into in open court. Up to the time that new counsel appeared in the case no one upon either' side, proponent, contestant or their respective attorneys and counsel, had contemplated for a moment a trial by jury. The postponement obtained on the eleventh of January was upon the stipulation that there was but one issue to be tried, that the case would proceed upon the next Monday upon that one issue at the Trial Term before the surrogate who was then hearing .the call of the calendar, before whom the contested proceeding was pending and necessarily without the interposition of a jury.

The attempted violation of the well-understood stipulation made in open court by which the trial was postponed to another month before a different surrogate and before a jury receives our emphatic disapproval. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Scott, Bowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. 
      
       Since amd. by Laws of 1915, chap. 275.— [Rep.
     