
    Talbot et al. v. Talbot, impleaded, &c.
    An order of the Supreme Court, reversing a Surrogate’s decree admitting a will to probate, for error in law, and remitting the proceedings to the Surrogate, is a final determination in the Supreme Court, and is appealable to this court.
    A widow, cited, but who does not appear or contest the probate of her husband’s will, is a competent witness for the contestants, as against the objection that she is a party to the proceeding; and no formal order, dismissing her as a party, or otherwise providing for her examination, is necessary.
    Where, on the hearing before the Surrogate, there is general evidence of the execution by the husband of a previous will, under which the widow would take the same provision as under the will offered for probate, the validity of the first will is to be assumed in support of the competency of the widow, as against the objection of interest.
    
      Appeal from a judgment of the Supreme Court, in the fourth district, reversing, on appeal, a decision of the Surrogate of Essex county, by which the will of Edward Talbot, deceased, was admitted to probate. The deceased left a widow, Mary Talbot; two sons, Edward (who was made executor, and who propounded the will for probate) and Charles, who contested it; a daughter, Jane Barnes; and the children of two deceased daughters. By the will, dated May 7, 1853,' ■ there was given a legacy to his wife of $1; one to Jane Barnes of $200; one to Charles Talbot of $300; small legacies to the testator’s grandchildren; and the residue was given to his son Edward. It was shown that the deceased died worth from four to five thousand dollars in real and personal property. The Surrogate issued a citation in the usual form, directed to the widow and next of kin by name. On its return, the proponent and Charles Talbot, Mrs. Barnes and her husband, and other legatees, appeared before the Surrogate and contested the probate; but nothing is said as to any appearance by, or on behalf of, the widow. The formal execution and attestation of the will was. proved by the subscribing witnesses, Israel A. and Solomon Conery. They were' cross-examined by the counsel for the contestants; and other witnesses were examined on either side upon the question of testamentary" capacity, and on the allegation by the contestants that the deceased was intoxicated at the time he signed the will. Some of the testimony was given with a view to show undue influence on the part of Edward Talbot. It appeared that the deceased had executed a former will, some time during the preceding year, before the same attesting witnesses, and that it had been kept for him by Solomon Conery, one of these witnesses. On the occasion of executing the will in controversy, and immediately after it had been signed and attested, the deceased called for the former one, and, on its being given to him, he burned it. This will differed from the last one in giving somewhat larger legacies to his children and grandchildren, other than his two sons, and he made those sons, together, residuary legatees. The nominal legacy to the widow was the same in both wills. While producing their evidence, the contestants called the widow of the deceased as a witness, but she was not received. The statement in the return, in this respect, is in these words: “Robert S. Hale, on behalf of the contestants, offered as a witness Mary Talbot, the widow of the deceased, to prove the incapacity of the deceased to make a will, and to prove undue influence on the part of the propounder, Edward Talbot, in its procurement. The witness is excluded, and the contestant excepts.”
    The evidence is-further alluded to in the opinions. The appeal to the Supreme Court was by Charles Talbot and Mrs. Barnes and her husband; and the widow and the other legatees were made respondents. The widow answered the petition of appeal, admitting therein that the Surrogate’s decree was erroneous. The judgment of reversal, by the Supreme Court, according to the opinion, proceeded upon the ground that the objection to the witness was for interest, and that the ruling was unwarranted, because, as it was considered, the interest of the widow was balanced, she taking only a nominal legacy by the terms of each of the two wills. If the last will was pronounced against, the other, it was thought, would be established, so that she would not gain or lose by the decision.
    From the judgment of reversal, the proponent, Edward Talbot, appealed here.
    
      Augustus C. Hand, for the appellants.
    
      Amasa J. Parker, for the respondents.
   Selden, J.

Where an order or decree of a Surrogate, admitting a will to probate, is reversed by the Supreme Court upon a question of fact, and an issue is awarded to be tried at the Circuit, no appeal will lie to this court, for the reason that the order of the Supreme Court is not final. The matter is still pending in that court, and may be again brought before the general term, upon exceptions taken at the trial, or after motion to set aside the verdict. But it is otherwise where the Supreme Court reverses the order for error in law, and remits the proceedings back to the Surrogate. The order of reversal in such a case is a final determination of the proceeding in the Supreme Court. Nothing remains to be done in that court; and if a new appeal is brought from a second decree of the Surrogate, it is a proceeding de novo, and not a continuance of the first appeal. Hence, after the Supreme Court had corrected its error in this case, in ordering an issue to be tried at the Circuit, instead of remitting the proceedings to the Surrogate, the order made became appealable to this court. (Messerve v. Sutton, 3 Comst., 546.)

Upon the hearing before the Surrogate, the parties contesting-the will offered Mary Talbot, the widow of the testator, as a witness to impeach the will, on the ground of fraud and undue influence and of want of testamentary capacity. The witness was objected to and excluded, and the contestants excepted to the decision. If the Surrogate was right in excluding this witness, we should be compelled to look into the evidence to see whether he was also right in his conclusion upon the question of capacity and undue influence; but if, as the Supreme Court has held, he-was wrong in such exclusion, then his decree was properly reversed, and it becomes unnecessary to examine the case at large.

Was Mary Talbot, then, a competent witness? The objection to her competency is placed upon the grounds, 1. That she was a party to the suit or proceeding, and therefore incompetent ; and, 2. That she was interested in the result of the decision to be made.

The Supreme Court was, perhaps, right in assuming that those sections of the Code which relate to the examination of parties and interested persons as witnesses, do not apply to proceedings in Surrogates’ courts. It has been so held by that court in several cases in which the question has arisen, and, as it will not affect the result, I shall, for the purposes of the present case, adopt that conclusion. It is doubtful whether the widow could be considered as. a party to the proceeding-before the Surrogate, in such a sense as to require her exclusion, even under the strict legal rule which prohibits parties from being examined as witnesses. It is true, she was included in the citation; but she was not among those who contested the probate of the will, nor did she appear at all at the hear^ ing. _ ■

_ But, conceding that she was to be regarded as a party within the rule, her examination should, nevertheless, have been permitted, unless she had some interest in the question to be determined. Although section 397 of the Code has no application to the rule, still that section is merely in affirmance of the equitable rule which previously obtained in the Court of Chancery; and there is no reason why that rule should not be applied to proceedings in Surrogates’ courts, which partake more nearly of the nature of equitable than of legal actions. It was unnecessary to observe the forms prescribed by the Court of Chancery in such cases. Those forms were adopted for the sake of convenience merely, and were in no respect essential to the application of the rule.

The admissibility of Mrs. Talbot as a witness, therefore, depended entirely upon the question of interest. If interested, she was incompetent upon that ground alone, as section 398 of the Code did not apply, and- the act of 1857 had not then been passed. She was, no doubt, interested to defeat the will sought to be proved, unless the Supreme Court was right in assuming that the effect of the subversion of that will would be to revive and establish a previous will, under which her rights and interests would'be identical with those under the will in controversy.

It is said, on the part of the appellant, that there was no proof that the first will, spoken of by the witness Conery, had been duly executed. It is true, the proof in regard to its execution is not very explicit. The testimony on that subject, however, was drawn out by the appellant himself. Conery, the witness, was the person who drew both the wills. It is evident, from his testimony, that he perfectly understood the requirements of the statute. He swears that the first will Was executed by the testator, and that he, together with another person, signed it as witnesses. He also says that the appellant himself called upon him, the witness, to draw the "second will, saying, at the same time, that his father was going to make a new will, and adds that the appellant had previously told him that the testator talked of getting the witness to draw another will. The cross-examination of the witness, Conery, on this subject appears to assume that the testator had made a previous will, and that his object in getting Conery to draw the will in question was to change the disposition of his property made in the prior will. This is, I think, sufficient to establish, prima facie, that the first will had been properly executed.

But it is suggested that, although the first will was duly executed according to the forms prescribed by the statute, it does not follow that it was a valid will. It might still, upon being propounded for probate, be rejected, upon the ground of the incapacity of the testator, or as having been obtained by fraud or undue influence. Hence, it is insisted, by some of my associates, that, until the first will was proved and established as a valid will, it could not be assumed that its effect would be to neutralize the interest of the widow. This position, however, cannot, in my view, be sustained. A will, in all respects duly executed according to law, is, prima facie, a valid will, and must be so regarded until the contrary is shown. The burden of proof, in all such cases,, lies upon the party denying its validity. The question might be very clearly presented in this form. Suppose, upon the trial of an issue in a suit at law, a witness is offered who appears, prima facie, to have an interest in the event of the action, and, to remove the objection, it is proposed to show a will, in all respects properly executed: would it be a sufficient objection to the evidence that the will had not been proved, and that it might turn out to be invalid ? I think not. Objections upon the ground of interest have'been frequently met at the Circuit by the introduction of bonds, notes, and other instruments, which have never been judicially established; and I am not aware that ah objection for that reason has ever been sustained. It is as true of such instruments as of wills, that they may be void for incompetency, for fraud, and other causesbut such invalidity is not to be presumed. The law assumes the contrary, until the invalidity is shown. There is no reason why wills should be made an exception to this rule; and I have met with no authority to that effect.

It follows, that the Supreme Court was right in holding that the widow had no interest in the matter concerning which she was offered as a witness, and, hence, that she was improperly excluded by the Surrogate. The order appealed from must, therefore, be affirmed.

Davies, Lott, James and Hoyt, Js., concurred.

Denio, J. (Dissenting.)

The alleged error of the Surrogate mainly relied on by the counsel for the contestants is, that the widow of the deceased was improperly excluded when offered as a witness on their behalf. This ruling is sought to be sustained by the counsel of the present appellant, not only on the ground of interest, which the Supreme Court assumed to form the basis of the Surrogate’s determination, but because, as alleged, the witness was incompetent on account of being a party to the proceeding. It is impossible to say on what ground the Surrogate held the widow incompetent. Ho objection on the part of the proponent, to her being sworn, is stated; but the Surrogate, so far as appears, excluded the witness of his own motion. The objection of interest is not alluded to, nor any opportunity given to obviate it by a release or otherwise, if it existed. The objection that the witness was incompetent as a party to the proceeding, if a good one, was patent, and did not require to be pointed out. The officer had the record before him, and of course knew the precise relation which the witness sustained to the litigation; and if the law did not permit a person thus situated to be examined, it was quite correct for the judge to exclude him, unless the opposite party should consent to her being received. The first inquiry, then, is, whether she was incompetent on account of being a party to the proceedings, irrespective of any "question of interest. At law the rule was well established that a-party to a-su.it could not be received as a-witness, whether be was interested or not. (Pack v. The Mayor, &c., of New York, 3 Comst., 489; Cow. & Hill’s Notes, 134,137, 1548.) In Chancery the rule seems to have been the same, subject, however, to the exception that if a defendant desire to examine a co-fiefendant he-might have an order allowing him to do so on ¡showing by affidavit that the party sought to be made a witness was not interested-in the matter to which he was to be examined. Where stich Order was obtained the party might be examined, subject, however, to all objections to Ms -competency other than that he was a party to the smt. (Chancery Rules of 1844, Rule 73.) If being a party Was not, prima facie, a disqualification, it would not be necessary to obtain an order; but the question upon receiving Ms testimony would ¡be the same wMch arises when ainy person -is proposed to be examined. A complainant Cannot be ¡examined 'on behalf ¡of a eo-complainant. (Eckford v. De Kay, 6 Paige, 565.) Proving ia will before the Surrogate, under the-statute, is mot: strictly a suit in court, though it is -a . judicial ¡inquiry of the ¡same 'general Character. The executor, -or other -party ¡propounding ¡the alleged will, is required to procure and-serve a citation, in the nature of process, against all ¡persons who would be -entitled to a share of the -succession in -case -of intestacy. -The persons cited may or may not, ón the whole, be ¡interested to 'oppose the probate, and they -may appear, or abstain -from appearing, according¡as-their interests-may-seem to-them to -require; or some of ¡those -interested -to defeat the alleged will may stay away, relying on ¡a sufficient opposition being made by other interested parties who actually-appeanas .contestants,-and whose opposition would necessarily inure to their benefit. The judgment operates in rem and in personam. In -the former - aspect, when the will-is established, the -judgment declares the assets to bq a -fund to be distributed according to the directions of the ¡will,:1 and irrevocably attaches that character to them. As -a'.personal judgment, it divests all the parties proceeded against ,of the rights wMch they would have had under the statute of ¡distributions -in the case of intestacy, and also all such as they would have had under any former will which is revoked or superseded by the one attempted to be proved. This view of the effect of the proceeding shows that, upon principle, there is the same reason for excluding the testimony of the parties which would exist in a regular proceeding at law or in equity. No substantial distinction 'exists between the different proceedings in this particular. Still, as this rule is in all cases an arbitrary one, and is not founded on any very strong reasons, I should hesitate to extend it to a case to which it had not hitherto been applied. But I find that it is considered to prevail in the ecclesiastical courts in England, which courts, as is well known, have the jurisdiction of admitting wills of personal property to probate, exercising, in that respect, substantially the same jurisdiction which the statute of this State has vested in the Surrogate. A case referred to from the reports of these courts appears to me to recognize the rule as I have stated it to prevail in the late Court of Chancery. In Arnold v. Earl & Newbee (2 Lee, 380), there was a citation to prove a will, and the .question was, whether Newbee, one of the parties proceeded against, as a next of kin of the deceased, could be sworn on behalf of the executor, who .propounded the instrument. Newbee appeared, declared he would not oppose the will, and prayed to be dismissed, so that he could be a witness for the executor. The motion was opposed on behalf of another party, who appeared as next of kin. There was no suggestion that he was a competent witness while he remained a party to the proceeding ; but the judge said that, having declared he would not oppose the will, he had judicially bound himself, and had thereby fully answered the purpose for which he was cited. He was, therefore, dismissed as a party, and was then sworn as a witness. The motion and the order would be absurd, if the general rule were not that a party to such a proceeding was incompetent to be sworn as a witness. In Brush v. Holland, Mr. Bradford, late Surrogate of New York, had occasion to examine this question incidentally, and concluded that none of the parties to a probate proceeding were competent witnesses. (3 Bradf., 240.)

In the present case, the widow of the alleged testator.was a necessary party. She had not declared she would not oppose the probate, though she did not appear and offer any actual opposition; and no order had been obtained, dismissing her. from the proceeding. The opposition which was actually offered by the other parties, however, inured- as fully to her benefit as though she had formally appeared. I am, therefore, inclined to the opinion that, as the case then stood, she was incompetent to give testimony for another party, cited as a-next of kin to attend the probate.

But I think, also, that she was an interested party. As the widow of the deceased, she was, prima facie, entitled to a share of his personal estate. But against this claim there were two wills, in each of which she was cut off, so far as regards personalty, with a nominal legacy. If the second will, which was sought to be proved, was -valid, her claim was barred. If that will was invalid, perhaps the former one, if itself otherwise a valid will, would stand unrevoked, and she would still be barred. But the question as to the validity of thé first will was not on trial. If, in the actual proceeding, the judgment had been against the will, the first one would not be judicially established. It would require to be propounded for probate, and then an opportunity would be afforded to attack it on the ground of want of testaméntary capacity. If the intention of the widow was to contend for intestacy, both wills must be opposed, as they should successively be presented for probate. She had an interest to defeat the will now in question, for that would remove one obstacle in her way. If established, it would furnish a conclusive bar to her claim; but if defeated, her claim would be perfect, unless probate of the other will could be obtained. Now, a considerable part of'the evidence which was given upon the question of capacity covered the period during which both the wills were executed. Charles Talbot, it is true, would not probably have opposed the first will, because in that he shared the estate equally with 'his brother; but the widow and the other next of kin, besides her sons, had a direct interest to oppóse that wjll when propounded for probate. When it came out incidentally that a former will had been executed, which was destroyed after the second one was signed, it is not to be conclusively assumed that it was a valid and perfect will when executed. It was indifferent to the question then immediately under consideration, whether that was its character or not; for, whether it was valid or not, it was revoked by the execution of the other, if the testator had then sufficient capacity to make a will.

Upon the whole, I think it clear that the widow was a formal party to the proceeding, and that she had .a pecuniary interest to defeat the probate of the will. If the objection upon which the ruling, excluding her, was made, was based upon her being a party to the proceeding (as I think it should be considered), it was well taken, though the law should be that a mere formal party, without interest, would be competent. She was an interested party to the record. She was not competent under the act of 1847 (ch. 462),- which authorizes the calling of an adverse party; for she was in the same interest with, and in no sense adverse to, the contestants who called her. The Code had no application to the case; for such proceedings as these were expressly excepted from its operation. (§ 471.) But if the Code governed the case, the witness wpuld not have been competent; for, when the trial took place, interested parties were incompetent. (§ 399.)

I am, therefore, of opinion that the ruling of the Surrogate was correct, and the judgment of the Supreme Court should be reversed.

Masoh, J:, also delivered an opinion for reversal. Com-stock, Oh. J., concurred in the preceding opinion so far as it relates to the interest of the widow, but did not regard the objection-that she was a party as requiring any formal order to obviate it.

Order affirmed.  