While it is true that, in cases where a crime is sought to be established by circumstantial evidence, every link in the chain of circumstances. must be connected, so that the guilt of the accused flows naturally from the facts and circumstances proved, and while they must point clearly to the guilt of defendant, and be inconsistent with her innocence, so that her guilt must be established to a moral certainty, I think the facts and circumstances proved in this case have fully measured up to this rigid standard, and point clearly to defendant's guilt. As was said by Judge Hiscock in People v. Gillette, 191 N. Y. 107, 83 N. E. 680: "But all taken together and considered as a connected whole, they [the circumstances] make such convincing proof of guilt that we are not able to escape from its force by any justifiable process of reasoning, and we are compelled to say that not only is the verdict not opposed to the weight of evidence and to the proper inferences to be drawn from it, but that it is abundantly justified thereby."

The evidence in this case has been read with the utmost care, and after due consideration the impression is left that no mistake was made by the trial jury; that the facts and circumstances as established point clearly to defendant's guilt and exclude every hypothesis of her inno

cence.

Defendant asks that this conviction be reversed because, as it is claimed, instructions were given to the jury in the absence of the defendant. The record is silent in that regard, so the question is not properly here; but on the argument the point was raised by counsel for defendant. He was asked by a member of the court if the prisoner was not finally sent for, and, on her appearance, if the court did not withdraw what had been said in her absence, and if the court did not reinstruct the jury on the points raised in her presence, and he replied in the affirmative. That being so, no right of defendant was overlooked and no injustice was done her.

The case of Maurer v. People, 43 N. Y. 1, does not assist defendant. That was a case where the jury came in for instructions, received them, and retired, all in the absence of defendant. Here whatever was said to the jury in response to the request for additional instructions in the absence of defendant was withdrawn when her absence was discovered, and the jury told to disregard it, and then the jury was reinstructed on the same points. If any error had unwittingly crept into the proceedings, it was cured, and no injustice was done defendant. People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368; People v. Kelly, 94 N. Y. 526.

Defendant had a fair trial, no legal error was committed that would justify a reversal, the verdict of the jury was right and based on sufficient evidence, and the judgment of conviction and order denying the motion for a new tria! should be affirmed.

HUBBS, J., concurs.

(113 Misc. Rep. 215)

(184 N.Y.S.)

In re HODGMAN'S ESTATE.

(Surrogate's Court, New York County. October 14, 1920.)

1. Wills 52 (1), 163 (1)-Proponent must show capacity, and contestant, undue influence and fraud.

On the issue of testator's capacity the affirmative is with proponent; but on the issue of undue influence and fraud the affirmative is on contestant.

2. Discovery 40-Not allowed in will contest, where testamentary capacity is sole issue, but permissible on question of undue influence.

No examination before trial should be had of the proponent of a will, or other. party, by the contestant, where testamentary capacity is the sole issue, proponent having the affirmative, and the contestant having a ready means of ascertaining the facts by examination of the subscribing witnesses, under Code Civ. Proc. § 2611; but on the issue of undue influence, on which contestant has the affirmative, such examination before trial is permissible.

3. Wills 163 (2)-Where confidential relations exist, burden of proving undue influence rests on contestant.

When a confidential relation exists between the decedent and the person charged with undue influence, the ordinary rule that the burden is on contestant of the will is not changed.

In the matter of the estate of Rosetta L. Hodgman. On motion to vacate order for proponent's examination before trial. Order modified. Evarts, Choate, Sherman & Leon, of New York City (Joseph H. Choate, Jr., of New York City, of counsel), for proponent.

Horwitz, Rosston & Hort, of New York City (Otto Horwitz, of New York City, of counsel), for objectant.

FOLEY, S. This is a motion to vacate an order for the examination before trial of the proponent. The proponent is also the sole legatee under the will propounded. My distinguished predecessor, Surrogate Fowler, held in the Matter of Hodgman, 107 Misc. Rep. 70, 175 N. Y. Supp. 608, in this very estate, that the provisions of section 870, C. C. P., et sequitur, did not apply to the Surrogate's Court and were not made applicable by the provisions of section 2770, C. C. P., on the theory that those sections applied only to actions and not to proceedings in this court. Thereupon mandamus proceedings were commenced against him in the Supreme Court, New York County, and a peremptory writ issued. On appeal from the order granting the writ the Appellate Division, in People ex rel. Lewis v. Fowler, 189 App. Div. 335, 178 N. Y. Supp. 500 held that mandamus would not lie. The Court of Appeals, on appeal from this decision, held that mandamus should issue to compel the surrogate to act upon the application for examination; that the surrogate had erroneously held that he did not have the power to grant the order, but that it was error in granting the writ of mandamus to go further and to seek to control the judicial judgment and discretion of the surrogate, and direct him to grant the particular order for examination presented by the applicant. People ex rel. Lewis v. Fowler, 229 N. Y. 84, 127 N. E. 793. That court,

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moreover, held that the provisions of the Code of Civil Procedure cited above applied to contested probate proceedings in the Surrogate's Court.

[1] Thereafter the contestants in this estate procured a new order for the examination of the proponent John E. Lewis. The motion before the court, therefore, is a novel one, and of importance as initiating the policy to be adopted in these examinations. The difficulty of establishing set rules arises from the fact that in the usual form of objections filed by contestants two or more issues are raised. Upon these issues there are different rules as to the burden of proof. The affirmative on the issue of testamentary capacity of the testator is with the proponent. Delafield v. Parish, 25 N. Y. 9, 97. The affirmative on the issue of undue influence and fraud lies upon the contestant (Matter of Kindberg, 207 N. Y. 220, 100 N. E. 789; Matter of Woods, 189 App. Div. 324, 178 N. Y. Supp. 573; Matter of Ruef, 180 App. Div. 203, 167 N. Y. Supp. 498; Matter of Fleischmann, 176 App. Div. 785, 163 N. Y. Supp. 426; Matter of Falabella [Sur.] 139 N. Y. Supp. 1003).

[2] The recent decisions of the Appellate Division, First and Second Departments, hold that an examination of an adverse party should be denied where the adverse party has the affirmative upon the issue concerning which the examination is sought. Scheff v. Lewis, 191 App. Div. 30, 180 N. Y. Supp. 831; Oshinsky v. Gumberg, 188 App. Div. 23, 176 N. Y. Supp. 406; Central Trust Co. v. Weidenfeld, 183 App. Div. 375, 170 N. Y. Supp. 767; Kornbluth v. Isaacs, 149 App. Div. 108, 133 N. Y. Supp. 737; Beckel v. Salomon, 189 App. Div. 310, 178 N. Y. Supp. 209; East Rochester Const. Co., Inc., v. Eyer, 109 Misc. Rep. 191, 178 N. Y. Supp. 262. Certain exceptions have been made to this general rule. Scheff v. Lewis, supra; Oshinsky v. Gumberg, supra; Central Trust Co. v. Weidenfeld, supra; Kornbluth v. Isaacs, supra; Wessel v. Schwarzler, 144 App. Div. 587, 129 N. Y. Supp. 521; Segschneider v. Waring Hat Mfg. Co., 134 App. Div. 217, 118 N. Y. Supp. 1000. Under these authorities it would seem that the contestant is not entitled to an examination of the proponent on the issue of testamentary capacity. No examination, therefore, should be had of the proponent or other party by the contestant where that issue is the sole issue. It may be pointed out, in passing, that the contestant has a ready means of ascertaining the facts surrounding the execution of the will and the condition of the testator by an examination of the subscribing witnesses under section 2611, C. C. P.

A different rule, it would seem, should prevail upon the issue of undue influence, where the burden of proof and the affirmative are upon the contestant. It is seldom that direct proof of undue influence is found, for the very nature of the transaction sometimes makes it impossible to establish that issue by direct evidence. If there were undue influence, it would be quite probable that the parties wielding it would do so only when they were entirely secluded from the observation of hostile witnesses. It is generally the subject of circumstantial evidence. Rollwagen v. Rollwagen, 63 N. Y. 504, 519. Since the testimony disclosed by an examination would be a part of the case of the

(184 N.Y.S.)

contestant on this issue, an examination would seem proper. In accordance with these rules the motion to vacate the order of examination will be denied. The examination will be limited to matters set forth in the order within the issue of undue influence. Paragraph 3 of the order is limited to the attendance of the doctors, nurses, or attendants who treated the testatrix at the request or upon the engagement of the persons charged with undue influence. Paragraph 6 is limited to the nature and extent of the business affairs and personal transactions of decedent with proponent or any one acting for him or at his solicitation. Paragraph 9 is stricken out. Paragraph 15 should also be stricken out.

[3] It should also be pointed out, in passing, that the contention of counsel for the proponent that the burden of proving the absence of undue influence is on him in this proceeding is contrary to the authorities · in this state. Counsel's claim is that in cases where there is a confidential relation between the decedent and the person charged with undue influence the ordinary rule that the burden is on the contestant is changed. This is not so. Matter of Kindberg, 207 N. Y. 220, 228, 100 N. E. 789; Matter of Ruef, supra; Matter of Fleischmann, supra; Matter of Mondorf, 110 N. Y. 450, 18 N. E. 256.

The order of examination is modified accordingly. Settle order on notice.

Wills

In re FOX'S ESTATE.

(Surrogate's Court, Bronx County. December 30, 1919.)

123 (3) —Will held not signed by decedent and witnesses at the end as required by statutes.

A propounded document, consisting of a single sheet folded to make two leaves and four pages, the first of which contained the usual introductory clause and dispositions, further specified "on the back of this sheet," followed by a blank space, a clause appointing an executor, a testimonium clause, containing the date, the decedent's signature, and the signatures of the attesting witnesses, followed by an attestation clause and the signatures and addresses of the witnesses, and on the second and third pages containing dispositive provisions, followed by decedent's signature of the same date, was not signed by testator and the witnesses at the end thereof, as required by Decedent Estate Law, § 21, and hence was not entitled to probatė.

Contested proceeding for the probate' of a document as the last will of Cephas Brainerd Fox, deceased. Probate denied.

Brison Howie, of New York City, for executor.

Thomas Gilleran, of New York City, special guardian.

SCHULZ, S. The document offered for probate as the last will and testament of the decedent was prepared upon a so-called will blank. This consists of a single sheet of paper, folded so as to make two leaves, and when thus folded consists of four pages. Upon the first page is the usual introductory clause, which contains a provision revoking all other

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moreover, held that the provisions of the Code of Civil Procedure cited above applied to contested probate proceedings in the Surrogate's Court.

[1] Thereafter the contestants in this estate procured a new order for the examination of the proponent John E. Lewis. The motion before the court, therefore, is a novel one, and of importance as initiating the policy to be adopted in these examinations. The difficulty of establishing set rules arises from the fact that in the usual form of objections filed by contestants two or more issues are raised. Upon these issues there are different rules as to the burden of proof. The affirmative on the issue of testamentary capacity of the testator is with the proponent. Delafield v. Parish, 25 N. Y. 9, 97. The affirmative on the issue of undue influence and fraud lies upon the contestant (Matter of Kindberg, 207 N. Y. 220, 100 N. E. 789; Matter of Woods, 189 App. Div. 324, 178 N. Y. Supp. 573; Matter of Ruef, 180 App. Div. 203, 167 N. Y. Supp. 498; Matter of Fleischmann, 176 App. Div. 785, 163 N. Y. Supp. 426; Matter of Falabella [Sur.] 139 N. Y. Supp. 1003).

[2] The recent decisions of the Appellate Division, First and Second Departments, hold that an examination of an adverse party should be denied where the adverse party has the affirmative upon the issue concerning which the examination is sought. Scheff v. Lewis, 191 App. Div. 30, 180 N. Y. Supp. 831; Oshinsky v. Gumberg, 188 App. Div. 23, 176 N. Y. Supp. 406; Central Trust Co. v. Weidenfeld, 183 App. Div. 375, 170 N. Y. Supp. 767; Kornbluth v. Isaacs, 149 App. Div. 108, 133 N. Y. Supp. 737; Beckel v. Salomon, 189 App. Div. 310, 178 N. Y. Supp. 209; East Rochester Const. Co., Inc., v. Eyer, 109 Misc. Rep. 191, 178 N. Y. Supp. 262. Certain exceptions have been made to this general rule. Scheff v. Lewis, supra; Oshinsky v. Gumberg, supra; Central Trust Co. v. Weidenfeld, supra; Kornbluth v. Isaacs, supra; Wessel v. Schwarzler, 144 App. Div. 587, 129 N. Y. Supp. 521; Segschneider v. Waring Hat Mfg. Co., 134 App. Div. 217, 118 N. Y. Supp. 1000. Under these authorities it would seem that the contestant is not entitled to an examination of the proponent on the issue of testamentary capacity. No examination, therefore, should be had of the proponent or other party by the contestant where that issue is the sole issue. It may be pointed out, in passing, that the contestant has a ready means of ascertaining the facts surrounding the execution of the will and the condition of the testator by an examination of the subscribing witnesses under section 2611, C. C. P.

A different rule, it would seem, should prevail upon the issue of undue influence, where the burden of proof and the affirmative are upon the contestant. It is seldom that direct proof of undue influence is found, for the very nature of the transaction sometimes makes it impossible to establish that issue by direct evidence. If there were undue influence, it would be quite probable that the parties wielding it would do so only when they were entirely secluded from the observation of hostile witnesses. It is generally the subject of circumstantial evidence. Rollwagen v. Rollwagen, 63 N. Y. 504, 519. Since the testimony disclosed by an examination would be a part of the case of the