
    In the Matter of the Probate of the Alleged Last Will and Testament of William T. Blair, Dec’d.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 26, 1891.)
    
    1. Administrator—Temporary—Power of surrogate to appoint— Transfer to common pleas.
    When the surrogate of New- York county transferred the proceeding for the probate of a will to court of common pleas, under § 2547 of the Code Civil Procedure, he was not deprived of the power to appoint a temporary administrator while the proceeding was pending in the common pleas in order to preserve the estate, as the power of the common pleas in such case is restricted to the trial of the issues of fact and to appellate proceedings.
    Appeal from an order of the surrogate denying an application of the infant contestant, Sarah Catherine Blake, by her special guardian, Mr. Edward T. Wood, for the appointment of a temporary administrator of the estate of William T. Blair, deceased.
    
      Edward T. Wood (Robert Sewell and J. Aspinwall Hodge, Jr., of counsel), for app’lt; Benjamin Wright and John A. Taylor, for resp’ts.
   Barrett, J.

—The facts upon which the question of law presented for our consideration depends are correctly and tersely stated by the respondent as follows: '

“ The probate of the paper propounded in this proceeding as the last will of William T. Blair, deceased, was opposed by the infant contestant herein, and in December, 1890, upon his own motion, the surrogate transferred the proceeding to the court of common pleas. Upon the trial of the issues in that court a verdict was rendered adverse to the validity of the will. Pending appeal, an application to the surrogate’s court was made by the contestant for the appointment of a temporary administrator. The surrogate decided that a proper case was made out for such appointment, but concurred in the respondent’s contention that in the present situation the surrogate’s court had no power to take any step in the proceeding whatever, and accordingly denied contestant’s motion. From this order the contestant appeals ; the only question now in dispute is whether the surrogate’s court has power to take any steps in the litigation until the proceedings in the common pleas have been finally certified back to the surrogate’s court.”

We think the surrogate was not by the transfer in question divested of any of the powers conferred upon him by statute except such powers as by force of the transfer were expressly conferred upon the court of common pleas. He could doubtless no longer try the issues of fact arising in the special proceeeding for the probate of the will. That power by force of his order of transfer at once became vested in the court of common pleas. But that power alone was transferred, and that power alone became so vested. The transfer of such other powers as are vested by law in the surrogate’s court, and are not necessary to the due execution of the power transferred, cannot be implied. Thus the authority of the court of common pleas, by force of the order of transfer, is limited to the trial of the issues of fact and to certain appellate proceedings which may follow. The only implied' power to that which is necessary to secure a proper and adequate trial of the issues of fact and a proper and adequate hearing thereafter of the appellate proceedings provided for. The authority of the court of common pleas under the order of transfer ends when it finally certifies to the surrogate’s court the verdict upon the issues of fact. If the verdict sustains the will, the latter court may then admit it to probate. The court of common pleas is nowhere authorized by § 2547 to perform that function There are provisions of the Code, § 2486, authorizing the court of common pleas in certain cases to exercise all the powers and jurisdiction of the surrogate’s court; as where the surrogate is precluded or disqualified from acting, or where the office is vacant, or the surrogate is disabled by sickness, absence or lunacy. But this jurisdiction must not be confounded with the special and limited jurisdiction conferred upon the court of common pleas by the transfer in question.

Under this transfer, standing alone, the court of common pleas acquires none of the general statutory jurisdiction of a surrogate’s court any more than would the superior court if § 2547 of the Code had specified that tribunal as the transferee. The application for the appointment of a temporary administrator is no part of the proceeding for the probate of the will. It is an independent proceeding for the preservation of the estate (pending litigation) authorized by § 2668 of the Code of Civil Procedure and resting in the discretion of the surrogate. That discretion may be exercised where delay necessarily occurs in the granting of letters testamentary or letters of administration, not only in consequence of a contest with regard to the probate of a will, but for any cause whatever. This would seem to be decisive of the present question.

The respondent, however, claims that because notice of the application for temporary administration must be given “to each party to the special proceeding who has appeared” (§ 2669) it follows that such application is a mere incident to the main proceeding. This is not satisfactory reasoning. The question of notice cannot stamp the proceeding. We might as well say that a proceeding to revoke probate is a mere incident to the original proceeding for probate if all the original parties are required to be notified of the motion for revocation.

They are interested in the matter and that is all that can be said about it. Nor is the question at all concluded by the expression in § 2547, upon which the respondent relies that “ thereafter,” that is, after the verdict has been finally certified by the court of common pleas to the surrogate’s court, “all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate’s court.” The expression emphasized was plainly inserted for abundant caution. It simply affirms the natural status effected by the return of the verdict to the surrogate’s court. And it places that court in precisely the same position as though the surrogate himself had decided the contest for probate. This and nothing more. All subsequent proceedings to effectuate the verdict are thus to be had in the court specially constituted by law for that purpose and for all other probate purposes ; and that court simply continues to exercise its general statutory jurisdiction in the premises. It is quite clear that the form of the expression quoted has no bearing on the question of power, pending the trial of the issues of fact, to preserve the estate by applying the provisions of law with regard to temporary administration. We think, therefore, that the learned surrogate had full power to exercise the discretion conferred upon him by § 2668, with regard to temporary administration, and that upon the facts presented he should, as is conceded, have exercised that discretion in favor of the application.

It follows that the order appealed from should be reversed, with costs, and the application remitted to the surrogate for the due exercise of his discretion as to the appointment of one or more competent persons to whom letters of temporary administration should be granted.

Van Brunt, P. J., and Patterson, J., concur.  