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the Surrogate's Court to assess a tax on the transfer of a decedent's prop. erty, but will be presumed that the costs allowed by that court are the costs of the appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. $$ 3782, 3787; Dec. Dig. 8 936.*]* In the matter of the estate of Charles F. Wright. Application for taxation of costs on order reversing order, with costs, and dismissing the proceeding, with costs. Costs taxed, and order of remittitur signed.

Lyon & Smith, of New York City, for appellants.

Edward F. Boyle, of New York City, for respondent State Comptroller.

FOWLER, S. This is an application for taxation of costs upon an order of the Appellate Division reversing the order of this court, with costs, and dismissing the proceeding, with costs. 150 N. Y. Supp. 517. An order was entered in this court upon the report of the transfer tax appraiser assessing a tax upon a trust fund which came into the possession of the trustees after decedent's death. An appeal was taken to the surrogate from the pro forma order entered upon the appraiser's report, and a decision was rendered which directed that the appraiser's report be remitted to him for correction. The order entered upon his supplemental report was affirmed by this court, and an appeal was then taken by the trustees to the Appellate Division, where the order of the surrogate was reversed and the proceeding dismissed. The appellants submit a bill of costs containing the following items:

"Trial fee, contest, $70; trial fee, issue of law, $20; proceedings after granting and before new trial, $25 ; costs in the Appellate Division before argument, $20; for argument. $10."

The state comptroller contends that the only costs to which the appellants are entitled are $20 before argument and $40 for argument in the Appellate Division. Section 232 of the Tax Law (Consol. Laws, c. 60) provides that the surrogate cannot allow costs upon an appeal to him from his pro forma order entered upon the appraiser's report; therefore the only proceeding to which the direction of the Appellate Division could apply would be the proceeding before the appraiser which terminated in the filing of his report and the entry of the pro forma order thereon. Costs have never been awarded by this court in proceedings before the transfer tax appraiser, and I doubt whether this court has jurisdiction to grant such costs. The proceeding before the appraiser is not a proceeding before this court, as the appraiser is an employé of an independent branch of the state government, and the entry of the pro forma order upon his report is a ministerial act upon the part of the surrogate, and not an act requiring the exercise of judicial authority. In any event, costs in the Surrogate's Court are in the discretion of the surrogate (sections 2745, 2746 and 2747, C. C. P.), and no costs were allowed to the respondent by this court in the proceeding to assess a tax upon the estate of the decedent. Section 2589, C. C. P., provides that “the appellate court may award to a *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

successful party the costs of the appeal,” but nothing is said about the authority of the appellate court to award costs in the proceeding before this court.

I am therefore inclined to think that the Appellate Division did not intend to award to the appellants any costs in the proceeding instituted in this court to assess a tax upon the transfer of property of decedent and that the costs allowed by that court are the costs on the appeal taken to the Appellate Division from the final order of this court. I will fix the costs at $60, with disbursements.

Costs taxed and order on remittitur signed.

(87 Misc. Rep. 569)

In re REYNOLDS' ESTATE.

(Surrogate's Court, New York County. November 24, 1914.) 1. WILLS ($ 302*)-EXECUTION–TESTIMONY-SUFFICIENCY.

Testimony of the surviving attesting witness to a will containing a defective certificate of attestation, because omitting the word "him," so that it does not conclusively appear from the certificate that it was testator who published the will, that he drafted and prepared the will in the course of his professional employment by testator, that he recognized his own signature attesting the will, that he recollected testator signing it in his presence, and recognized testator's signature to the paper propounded, that it was the only will the witness ever prepared for testator, that he did not remeinber the place of execution, nor the presence of the deceased attesting witness, and proof of the signature of the deceased attesting witness, establish a prima facie case of due execution of the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 575, 581, 700-710;

Dec. Dig. $ 302.*] 2. WILLS (8 289*)—EXECUTION-CONTEMPORANEOUS WRITTEN CERTIFICATE OF

ATTESTATION-EFFECT.

A contemporaneous written attestation in proper form, signed by the attesting witnesses, whose signatures are proved, affords in itself the presumption of regularity in the execution of the will, though a surviving attesting witness cannot recall the facts stated in the certificate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 653-661 ; Dec. Dig. $ 289.*) Proceedings for the probate of the will of Patrick Reynolds, deceased. Decree for probate ordered,

Michael J. Scanlan, of New York City, for proponent.
Edmund Fletcher Driggs, of Brooklyn, for contestant.

FOWLER, S. The probate of the will, dated June 1, 1899, is contested, and the proper execution of the paper propounded is formally put in issue by the contestant. The case has been elaborately argued for the contestant.

[1] It appeared on the hearing that one of the attesting witnesses, Mr. Baker, is dead; the surviving attesting witness, a lawyer and the draftsman of the will, was sworn, and testified substantially that he had no independent recollection of the circumstances attending the execution of the will. The certificate of attestation annexed to the

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

paper in court is very slightly defective, in that it omits the pronoun "him," so that it does not conclusively appear therefrom that it was the testator who published the will. The certificate does not refresh the recollection of the surviving witness on that point. If any celebration of the will occurred, it was on the day of its date, some 14 years ago. The will is in the handwriting of the surviving attesting witness, who drafted and prepared it in the course of his professional employment by testator. This witness recognizes his own signature attesting the will. He recollects also the testator's signing a will in his presence, and he recognizes the testator's signature to the paper propounded, and states that it is the only will the witness ever prepared for testator. Thus in reality he recollects the testator's act of subscription. Witness testified that he was paid for his professional services in and about the making of the will offered, and he has no doubt that all the legal forms were complied with, but he has no independent recollection. He remembers neither the place of execution, nor the presence of the now dead attesting witness, nor does he identify the signature of such other witness. He, however, states that the omission of the pronoun “him” in the certificate of attestation was his own clerical error. He does not recall reading the attestation certificate aloud in the presence of the testator or the other attesting witness. His testimony, standing alone, is insufficient to entitle the paper to probate. It is, however, important in this matter to notice that the forgetful witness testifies to nothing which makes against the validity of the execution of the paper propounded. All he testifies to makes for such validity. The verity of the signature of the attesting witness, now dead, was, however, duly established by independent testimony.

[2] A contemporaneous written certificate of attestation in proper form of law, signed by the attesting witnesses, whose signatures are otherwise proved, affords in itself a presumption of regularity of the execution of a will, even though the witness cannot recollect the facts stated in the certificate. Matter of Sizer, 129 App. Div. 7, 9, 113 N. Y. Supp. 210; Matter of Will of Kellum, 52 N. Y. 517. Even in the absence of an attestation clause, a will may from other circumstances be presumed to have been duly executed. Matter of Abel, 136 App. Div. 788, 791, 121 N. Y. Supp. 452; Dack v. Dack, 84 N. Y. 663, 665. If this last is the proper inference or presumption, in the absence of any certificate, as it undoubtedly is, a certificate so slightly defective as that annexed to the will now here is unquestionably presumptive evidence of regularity of execution, when it is proven, as here, to be defective only by reason of a clerical error or omission on the part of the draftsman of the will.

There being no testimonial evidence, or any other evidence, to contradict the presumptive or prima facie case made for the will, and the paper having been proved to have been last in the testator's own custody, the decree must be for probate.

(87 Misc. Rep. 571)

In re SILVERMAN, (Surrogate's Court, New York County. November, 1914.) EXEU'UTORS AND ADMINISTRATORS (8 85*)—DISCOVERY OF ASSETS-PLEADINGS

AND ISSUES.

A petition alleged that bonds were given by decedent to respondent as collateral security for notes of decedent, to enable respondent to borrow money for his own use, but did not allege that the bonds were then in the possession or under the control of the respondent. The answer denied respondent's possession, but did not allege title or right to possession in respondent, but alleged that another party claims an interest in or may be entitled to the bonds. Held, that the pleadings did not raise an issue of title between petitioner and respondent, under Surrogates' Law, Code Civ. Proc. § 2676, providing that a respondent, who by answer denies possession of property of decedent, shall be sworn to answer all questions and an application for a trial by jury would be denied, but respondent would be ordered to submit to an examination and discovery.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 323, 339–358; Dec. Dig. § 85.*] In the matter of the application of Max Silverman, as executor under the last will and testament of Sarah Seadler, deceased, for an order directing Lewis Coon to appear and be examined, etc., pursuant to section 2676 of the Code of Civil Procedure. Application for an order for a trial by jury denied.

Foster & Cunningham, of New York City, for petitioner.
Harold E. Lippincott, of New York City, for respondent.

FOWLER, S. This is an application for an order for a trial by jury in a proceeding to discover property alleged to be withheld from an executor. A proceeding to discover property alleged to be withheld from personal representatives is in this court a wholly statutory proceeding. It was primarily a proceeding in aid of a more correct and efficient administration of estates in this court. The history of the legislation affecting this proceeding up until the year 1905 is well, although by no means exhaustively, presented in the judgment in Matter of Gick, 49 Misc. Rep. 32, 98 N. Y. Supp. 299, affirmed 113 App. Div. 16, 98 N. Y. Supp. 961. It was in that case held that a discovery was a proceeding of an inquisitorial nature. It was directed to the nature of the adverse possession and not to title. I shall not at this time attempt to review the numerous decisions of our courts on the particular limitations gradually imposed on this statutory proceeding in this court. It will suffice for present purposes to point out that the statutes giving the proceeding originally contemplated not a new equitable remedy to recover possession, but an aid in administration of estates, the better to enable the enforcement of legal rights, cognizable in forums other than those of the surrogates themselves. Until recently, when an issue of legal title arose by sworn answer (Matter of Will of Walker, 136 N. Y. 20, 29, 32 N. É. 633), or after the year 1903, when it arose in the course of the subsequent examination (Gick v. Stumpf, 113 App. Div. 16, 98 N. Y. Supp. 961; In re McGee, 63 Misc. Rep. 494, 118 N. Y. Supp. 423), the surrogate's jurisdiction was quite at an end.

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

It is now claimed that the Code of 1914, embodying the new Surrogates' Law, has put an end to all such limitations and that every discovery proceeding is a trial in pais, or rather that whenever an issue of the better legal title arises in a discovery proceeding, either by consent of counsel or on the face of the pleadings, a jury trial of the entire proceeding is a matter of right in this court. To the accuracy of this contention I cannot assent. This is still a court of specific, or rather of peculiar, and limited jurisdiction. Because of the new Surrogates' Law of 1914 it is no other court than that it has always been. Consent can never confer on a surrogate jurisdiction in a matter where it does not exist. This is not primarily a jury court, but one where a trial by jury may be had only in specific instances.

A trial by jury in this court is none the less a trial before the surrogate, and a consent by the parties to a trial by jury confers no jurisdiction on the surrogate to so conduct the trial. The consent is quite out of all consideration. Surrogates have no power or jurisdiction to conduct a trial by jury, except in certain contested probate matters, and in other matters, regularly in court, only where an issue arises in which the parties have a constitutional right to trial by jury in some other court. No other issue of fact can be submitted by a surrogate to a jury. The surrogate continues in this court to be the ordinary trier of fact until a matter is brought precisely within the statute.

I am also persuaded that where an issue of title appears on the face of the petition and answer in a discovery proceeding no right to trial by jury exists ipso facto at that stage of the proceeding. The state of the pleadings does not conclusively carry the right to trial by jury in this court. Here the discovery must proceed regularly, in the first instance, before the surrogate alone, and when he is satisfied, and not before, that there is a genuine and bona fide issue of legal title, by constitutional right heretofore triable by jury, then, and not before then, the parties have a right, in a case where they would have a constitutional right to a trial by jury in another court, to a trial by jury in the Surrogate's Court. The surrogate will, when that fact is established, in an orderly way and at a proper time to be appointed, present the issue of title to a common jury. Otherwise feigned issues might be brought surreptitiously in this court, and the regular common-law courts of the state might be deprived of their proper jurisdiction.

A discovery proceeding still remains in this court under the present act a discovery proceeding, and it must proceed as heretofore up and until the moment when it is made to appear satisfactorily to the surrogate that there is a bona fide issue of legal title between the personal representatives and the person who is alleged to withhold the property. It is not en

gh to confer a jurisdiction on this court to submit the discovery proceeding to a jury, that a question of title may arise in the course of such proceeding. It must be shown to arise. If a question of title arise between others than the personal representative and the withholder of the property there is no jurisdiction here to determine such issue. The better title of the personal representatives must be directly and exclusively involved in such a proceeding in order to confer jurisdiction on this court to try title. To repeat, if it should develop on the

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