
    MATTER OF HATTEN.
    
      N. Y. Common Pleas, Trial Term ;
    
    
      January, 1888.
    
      Again, N. Y. Surrogate’s Court, Hon. Rastus S. Ransom, Surrogate ;
    
    
      November, 1888.
    
      Surrogate court practice, issues of fact tried in common pleas or county court.] The verdict of a jury upon questions of fact, directed by the supreme court, on appeal from a surrogate’s decree on probate, to be tried in the New York common pleas (and the same principle applies to those directed to be tried in a county court), is to be certified by the clerk of the court in which the trial took place, and sent directly to the surrogate’s court; it is not necessary to have it returned circuitously through the supreme court.
    
    
      Trial of issues in N. T. common pleas, and application for decree of probate on return of verdict.
    On August 27, 1885, the deceased, Mary Teresa Hatten, departed this life, leaving a will dated the 17th of April, 1880.
    Upon the petition for probate of the will of the deceased, filed by the executors, the surrogate, in September, 1885, issued his citation to the heirs at law and next of kin, including among others, one Michael Bowen, an uncle of deceased, who filed an answer to the petition, with the usual allegations against the probate.
    Upon the issue thus joined proofs were taken, and on October 6, 1886, the surrogate in compliance with section 2545 of the Code of Civil Procedure, made and filed his findings of fact and conclusions of law, and thereupon directed that the will should be adrñitted to probate.
    The contestant thereupon appealed from the decision of the surrogate to the general term of the supreme court, which court, after héaring counsel, reversed the order of the surrogate and directed that the matter should be tried before a jury in the court of common pleas on issues of fact incorporated in the order.
    The statute authorizing this proceeding is as follows:
    § 2588. “ Where the reversal or modification of a decree by the appellate court ” [on appeal from surrogate’s court] “ is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate •of a will, make an order, directing the trial, by "a jury, of the material questions of fact, arising upon the issues between the parties. Such an order must state, distinctly and plainly, the questions of fact to be tried; and must, direct the trial to take place, either in a circuit court, specified in the order; or in the county court of the county of the surrogate ; or, in the city and county of Hew York, in. the court of common pleas. After the trial, a new trial may be granted, as prescribed in section two thousand five hundred and forty-eight of this act.”
    Section 2548 thus referred to, is as follows :
    § 2548. [Am’d 1886.] “ A trial by jury, pursuant to an order made in a proceeding for the disposition of the real property of a decedent, made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate or the court in which the trial took place, or, if it took place at the circuit court, by the supreme court, in a case where a new trial of specific questions of fact, tried by a jury, pursuant toan order for such trial, made'in an action, would be granted. The verdict of the jury must be certified to the surrogate’s court by the clerk of the court in which the trial took place.”
    Upon the order for trial of issues of fact, the cause came on to bb tried in the court of common pleas before Judge Van Hobsen and a jury. The questions were submitted to the jury, who answered them in favor of proponent.
    The question was then raised how the record should be returned, whether to the supreme court who ordered the trial, or to the surrogate’s court, where the final decree was to be entered.
    
      Wm. H. Arnoux (Francis C. Devlin, proctor), for proponents.
    
      Roger A. Pryor (S. B. Chittenden, Jr., proctor), for contestants.
    
      
       This decision indicates the practice on a point not before settled. It arises in a proceeding of considerable importance and resorted to ' with increasing frequency.
      The rule adopted favors simple and direct procedure and appears to be in harmony with the general scheme of the statute.
      Such clauses of the statute in reference to jury trial of issues in any cases arising in surrogate’s courts, as give any express'indication on the subject, favor the rule adopted in the text. Thus section 2547, which authorizes the surrogate of the city and county of New York to order a jury trial in proceedings for sale of real property to be had in the common pleas, provides that if the verdict be sustained upon appeal to the General Term on the court of appeals, “ The court of common pleas shall certify to the surrogate’s court the verdict.’’ In the absence of such a provision it would never be claimed that if the court of appeals should reverse an order refusing a new trial, and direct the common pleas to proceed with a new trial, the verdict should not be returned direct to the surrogate’s court.
      So if the supreme court should affirm a decree on probate, and the direction to try an issue be given in the first instance by the court of appeals on reversing the decree, it would never be suggested that the verdict should not go direct to the surrogate’s court.
      The only object of returning the verdict in the first instance to the supreme court would be to preserve the right of control and review in that court. But this idea is foreclosed, and review in a simpler way provided for by the direction of section 2648 that a new trial may be granted “ by the surrogate or the court in which the trial took place, or, if it tools place at a circuit court, by the supreme court,”
    
   Van Hoesen, J.,

directed that the record be returned to the surrogate, which was accordingly done.

Ransom, Surr., thereupon admitted the will to probate. 
      
       In Matter of Campbell, 48 Hun, 417, it was held that after a trial of the issues at the circuit court, pursuant to a general term reversal of a surrogate’s decree refusing probate of a will, the general term directing the issues to be tried at circuit, the circuit court cannot grant costs, but the verdict should be certified to the surrogate, who should grant or refuse probate accordingly, and it is for him to pass on the question of costs, unless the appellate court acted upon the question of costs when it decided the appeal.
     