
    Abraham Hewlett and others, App’lts, v. William Elmer, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    Appeal—Court op appeals—Power to review, surrogate’s decrees —Code Civ. Pro., §£ 1337, 3347—Laws 1883, chapter 229. Where a decree rendered by a surrogate upon a trial by him of an issue of fact has been pas-ed upon by the supreme court, at general term, the court cf appeals has no power to pass upon questions of fact depending upon conflicting evidence. Chapter 229, Laws of 1883, amending Code Civ. Pro., § 3347, subd. Il, did not enlarge the powers of the court of appeals in this respect, nor interfere with the prohibition 'to decide such questions distinctly imposed by section 1337, Code Civ. Pro.
    Appeal from judgment of supreme court, general term, first department, affirming a decision of the surrogate of New York county overruling objections to the probate of a will.
    
      Edward Schenclc and Henry L. Clinton, for appl’ts; E. L. Eancher, for resp’t.
    
      
       Affirming 30 Hun, 83 Mem.
      
    
   Danforth, J.

Samuel Wood made his will in July, 1872. He was possessed of a large estate, and after giving considerable sums of money to his relations, provided, through trustees, for the founding and endowment of an institution to be called the 11 Samuel Wood Benevolent Institute,” and a hospital similar to the institution known as “St Luke’s Hospital,” in New York; at the same time ■declaring the purpose and object of the institute to be “to assist and maintain” such of his relations and kindred, with certain exceptions, as shall, in the opinion and judgment of the trustees, heed assistance, and giving to those relations a right to free beds, bedding, attendance, support, and maintenance in the hospital during life, if they shall so long need assistance,' and a decent burial after death.” On the twentieth of March, 1875, he executed a codicil, in due form, by which he removed the hospital and the institute from the fist of his beneficiaries, and named in their place the “Samuel Wood College of Music,” which he desired to found. He dropped one S. from the executors’ list, and sustituted Elmer, the respondent, and Abraham Hewlett, in his place. The testator died on the twentieth of March, 1878. On the twenty-sixth of that month Hewlett presented the will and codicil to the surrogate of New York for probate, stating in his petition that he was a nephew, and the only heir and next of kin, of the deceased. No opposition was made to the will, and it was admitted to probate on the twentieth of April, 1878. The executor S., above referred to, opposed probate of the codicil, but after-wards withdrew from the contest, and that instrument was also admitted to probate on the tenth of October, 1878.

On the fourteenth of that month, Pearsall, one of the legatees under the will, claiming that he was co-contestant with S., and that the latter’s withdrawal from opposition without notice .to him rendered the decree irregular, and insisting that the codicil was invalid on the grounds (1) that the testator was of unsound mind, and incompetent to make the same; (2) that he was unduly and improperly influenced thereto by Elmer, one of the executors therein named, and other interested parties to him unknown,— applied to have the probate of the codicil vacated, and to be heard upon his objections. Thereupon the surrogate made an order that he be allowed to contest the probate of the codicil, and, with certain other persons, proceed in regard thereto and give such further or additional evidence in regard to it as they might be advised, and the question of vacating the probate of said codicil be reserved until the close of said evidence and the determination of such contest; and that, subject to the said right so given, the said decree admitting the said codicil to probate, and the letters testamentary issued thereon, should stand, with power to the executors of the will to administer the estate under the will, so far as the same has not been modified by the said codicil.

Upon such testimony as the parties produced it appeared to the surrogate ■ according to the recital in a decree-made December 31, 1881, that the said Samuel Wood, at the time he executed the codicil, was of sound mind, and under no restraint, or influence of fraud, and he adjudged that the decree of October, 1878, admitting the same; with the will, to probate, as the will and codicil of said deceased, be ratified and confirmed. The motion, therefore, to open the decree of October was denied, and the letters issued thereon to Elmer were ratified and declared valid. It was further adjudged that the motion by counsel for said proponent, William Elmer, for allowance to his proctor and counsel, be granted; and the amount thereof, as well as allowances to the proctor and counsel for said contestant, Pearsall, be adjusted by an order to be herein entered at the foot of this decree.

The notice and petition of appeal recites that the only person intended to be made respondent is William Elmer.

The appeal is from the whole of both decrees of the surrogate, viz.; that of October, 1878, and that of December, 1881, except so much as relates to the probate of the will. The general term affirmed the decree in all respects.

We do not find in the record that the appellants here made any contest before the surrogate, and, as it is conceded by all that the will is valid and must stand, it is exceedingly difficult, in view of the provisions of that instrument, to find in what manner they are, within the meaning of that term, aggrieved by the probate of the codicil. They might, indeed, share in the privileges of the institute and hospital, provided the trustees were of opinion they needed assistance; but an interest so contingent, and an enjoyment so dependent upon the discretion of another, can hardly constitute a right capable of enforcement in a court. Moreover, the record before us shows that as to them the decision of October was final. It would seem, therefore, that. the appeal might very well have been dismissed by the supreme court upon those grounds, which are also set up in the answer to the petition of appeal. The whole case, however, was considered by that court, and the appellants fail to satisfy us that there is any error in its decision. e

In one of the printed .briefs submitted to us in their behalf, we find a point made against that part of the decree of December, which provides for costs to be paid the proponent, Elmer, and costs to be paid the contestant, Pearsall. (1) As to Pearsall, he is not a party to. the appeal, and the question affecting him cannot be considered. (2) As to Elmer, it does not appear what, if any, allowance has in fact been made to him, and the proceedings in that respect, so far as the learned counsel for the appellants has directed our attention to it, seems incomplete, and in its present condition is not the subject of review.

The remaining propositions in the same brief present a very material question, and, if well founded, they show that, upon the merits, the surrogate and general term have, in some inexplicable way, been misled. These propositions are more than once repeated, and are placed upon the intelligible and plain assertions that, by the undisputed evidence, it is shown (1) that, prior to the execution of the codicil, decedent was in such a condition of mental enfeeblement or senile decay as to render him an easy prey to undue influence; (2) that, taking advantage of decedent’s mental-condition, Dr. Elmer practiced upon him the grossest fraud, and the rankest kind of undue influence, for the purpose of inducing him to make the codicil in question; (3) that the execution of the codicil was the result of fraud and undue influence practiced upon him by Dr. Elmer; (4) that decedent continued in a state of mental enfeeblement or senile decay from the time of the execution of the codicil until his death.

■ Upon this statement a question of law is presented. If •there is evidence leading to a different conclusion, it at most presents a case of conflict, and this alone, if our former decisions {infra) are correct, would not permit an interference with the judgment of the supreme court. In such a case the duty of weighing and comparing, and of drawing •inferences from evidence, is imposed upon the surrogate, subject to review by the general term, whose judgment, as we have frequently held, is quite independent of any view we might take of the same matter. Davis v. Clark (Nov., T'881), 87 N. Y., 623; In re Boss (Jan., 1882), id., 514; Marx v. McQlynn (March, 1882), 88 id., 357; In re Higgins, 94 id., 554; In re Cottrell, 95 id., 329; In re Darrotv, id., 668; In re Yates, 99 id., 94; In re Valentine, 100 id., 607.

These cases are placed upon the ground that an appeal to'this court does not bring up for review a question of fact 'depending upon conflicting evidence; that such question remained with the court below, it being for us only to determine whether there is any evidence upon which its decision might fairly and reasonably stand.

•• Á second' or supplemental brief, however, submitted in behalf of the appellants, deals entirely with this exposition of the duty and jurisdiction of this court, and is to the effect that a recent, and, in this connection, hitherto unnoticed, statute (Laws 1883, chap, 229) requires a qualification of the doctrine heretofore asserted "by us. We might -very well dispose of this appeal without discussing the last contention; for, in answer to the proposition that the proponent utterly failed to support the codicil before the surrogate, and that wholly undisputed evidence was arrayed against it, we have found it necessary to examine the entire -body of testimony.

• Our opinion of its efficacy and force, of its probative quality, and its persuasiveness, in no degree differs from that of the courts below, A restatement of the evidence is not necessary, nor a fresh recital of the circumstances which establish the proponent’s case. It has been carefully analyzed by the surrogate, and his views are concurred in by the general term. With those courts we agree. We find that the codicil expresses the mind of the testator; that he was not impelled to it by duress, fraud, or deceit; and with this conclusion we should, under ordinary circumstances, leave the case; but the question as to our jurisdiction and duty to examine such a point, upon conflicting evidence, is of general importance. It has been fairly raised and argued, upon an act of the legislature which is claimed to be expressly directed to that purpose, It will affect other cases, and its construction, therefore, should not be postponed. The provision referred to appears as an amendment to subdivision 11 of section 3347 of the act containing the Code of Civil Procedure, in chapter 22, title 2, entitled ”

As originally passed, that subdivision limited (with some exceptions) the effect, of chapters 14 to 20, both inclusive, to an action or special proceeding commenced on or after the first of September, 1880, that being the day on which those chapters took effect. Section 3356. In 1881 (chapter 681, Laws 1881) subdivision 11 was so amended as to provide that all appeals taken from any order, sentence, decree, or determination of a surrogate’s court, made or entered in such court on or after the first day of September, 1880, in any matter or proceeding pending or undetermined in such court on the first day of September, 1880, shall be taken and perfected, heard and decided, in conformity to the laws and practice regulating appeals from orders, sentences, and decrees of surrogate’s court in force in this state on th,e thirty-first day of August, 1880; and all appeals from any order, sentence, decree or determination of such court, brought in conformity thereto since the first day of September, 1880, were declared to be “valid and effectual,” with exceptions not material here. The subdivision was again amended in 1883 (chapter 229) by inserting a provision that “all appeals to the court of appeals, from any order or judgment of the supreme court affirming, reversing or modifying any such order, sentence, decree or determination of a surrogate’s court, shall be taken and perfected,, heard and decided, in conformity to the laws and practice regulating appeals from orders, sentences, and decrees of surrogates’ courts, and the hearing and decision thereof, in force in this state on the 30th of 1877.”

This is the provision relied upon by the learned counsel for the appellant in support of his contention as to the duty of this court to pass upon the facts according to the weight. of evidence. We are unable to give it that effect. The former Code (Laws 1849, chapter 438, § 471) did not include appeals from surrogates’ courts, and it was held that they, remained subject to the Revised Statutes; and that, upon appeal to this court from the judgment of the supreme court, in a case arising before the surrogate, the facts and the law. were both to be examined, upon the ground that such appeal was upon the merits, and authorized by the general language of section 11 of the old Code, which gavel the court of appeals exclusive jurisdiction to review, upon appeal, every actual determination made at a general term of the supreme court, and was, say the court, “unrestricted by any other statute.” Schenck v. Dart, 22 N. Y., 420.

So in Robinson v. Raynor (28 N. Y., 494), a similar duty is maintained, “so far as questions are presented by the appeal.” By the old Code (sections 268, 272, 348), on an appeal from a decision by a single judge or referee, a review of a question of fact could not be had by the court of appeals; it was limited to the general term. A decision by the surrogate, as we have seen, was unaffected by that Code, and hence there resulted, in regard to the same questions, a diversity of practice. In 1880 (chap. 245, § 1, subd. 4), the whole of the old Code was repealed, and by the new Code, taking effect on the 1st of September, 1880, proceedings in the surrogate’s court were regulated, (chap. 18, § 2545), and the practice upon a trial by him of an issue of fact, and preparation of papers on which an appeal should be heard, assimilated to the proceedings upon and after trial by the court without a jury. Exceptions might be taken to his rulings, as upon such a trial as prescribed in article third of title first of chapter tenth of that act. The provisions of that article, relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to'such a trial before a surrogate, for which purpose the decree is regarded as a judgment. And it also provided that an appeal from a decree or an order of a surrogate’s court, should bring up for review, by each court to which the appeal is carried, each decision to which an exception is duly taken by the appellant .as prescribed in that section.

' It should be noticed that these provisions are applicable to each court in which the appeal may be heard, and therefore to the court of appeals as well as to the supreme court. Particular provision was made in regard to appeals to the "supreme court (art. 4, chap. 18, § 2570), as to who might appeal; within what time, and how and upon what papers, and upon questions of law or fact, or both; and, when upon the facts, it was declared that the appellate court should have the same power to decide the questions of fact which the surrogate had, and might, in its discretion, receive further testimony or documentary evidence, and appoint a referee. It was evident that these provisions applied to the supreme court only, and we so held. In re Ross, supra.

The jurisdiction of the court of appeals is designated and created by law. It has no other. Batterman v. Finn, 49 N. Y., 340; Delaney v. Brett, 51 id., 78; Gottlieb v. Fowler, 55 id., 675. It was defined (sections 190, 191, new Code) as it had been under section 11 of the old Code. By section 190 it was given among, other things, exclusive jurisdiction to review, upon appeal, every actual determination made at a general term by the supreme court where a final judgment has been rendered in an action commenced in that court, or brought there from another court; and, section 471 (supra) having been repealed, included, of course, a judgment rendered upon appeal from a surrogate’s ' court. This general jurisdiction, however, was by section 191 made subject to various hmitations, exceptions, and conditions, and was further restricted by section 1337; which, defining what questions are brought up for review by the court of appeals, expressly declares that a question of fact, arising upon conflicting evidence, cannot be determined upon such an appeal, unless where special provision for the determination thereof is made by law. This section not only superseded the provisions of sections 268 and 272 of the old Code, relating to a review upon appeal of questions of fact arising upon a trial before a single judge or a referee, but imposed hmitations upon the court of appeals applicable to the determination of the general term upon such questions, on an appeal to it from a judgment rendered in any court, including the decree rendered by the surrogate upon the trial by him of an issue of fact; for, as W"e have seen (section 2545), for the purposes of review, such decree is regarded as a judgment.

It is now argued by the appellants that the amendment of 1883 (supra) abrogates the provision of section 1337, so far as appeals from cases originating in surrogates’ courts are concerned, and restores, as by re-enactment, the laws relating thereto which were in force on the 30th of April, 1877. At the time of its enactment section 1337 had been construed by us in repeated instances, beginning with Davis v. Clark, supra, and followed by In re Ross and Marx v. McGlynn, supra, in all of which we placed our decision expressly upon the prohibition contained in section 1337.. The legislature of 1883 must be deemed to have had in mind the whole law, not only as expressed by the statutes, but by the decisions of the court concerning them; and it cannot be supposed that they intended by the later act to interfere with the policy of the earlier one, which, dealing with the jurisdiction and powers of this court emphatically declared that a question of fact arising upon conflicting evidence cannot be determined by it, and expressly excepts such questions from those which an appeal brings up for review. The act of 1883, supra, does not enlarge the appellate power of this court, but only regulates such appeals as by existing laws were permitted, and does not purport to add to the questions to be reviewed. In the absence of a contrary intention plainly expressed; it must be presumed that the legislature did not intend to interfere with the prohibition so distinctly (section 1337) imposed upon the court, and this view is supported by a consideration of the language'of section 1338, where, anticipating that there might be a conflict in certain cases in the courts below, and consequent reversal of a judgment of the trial court upon a question of fact, the legislature, in the most formal and explicit words, have declared that in such a case, authenticated in a prescribed manner, the court of appeals must review the determination of the general term upon the questions of fact as well as those of law. It is not probable that less clear or unambiguous words would have been selected, if the purpose of the act of 1883, supra, had been to extend that jurisdiction over judgments of the surrogate’s court, relieved of the condition expressed in section 1338, or by that act, as to such judgments, to frustrate or destroy the limitations imposed by section 1337, supra.

We see no reason, therefore, to depart from the decisions already made concerning our jurisdiction.

The judgment should be affirmed, with costs to the respondent, to be paid by the appellants.

All concur, except Miller, J., absent.  