Opinion
November Term, 1899.
Decree of the surrogate reversed and a trial directed by jury pursuant to section 2588 of the Code of Civil Procedure of the question of fact arising between the parties. Order to be settled before Mr. Justice Herrick. Costs to abide the event.
I desire to call attention to the fact that the same relief that is sought by the appellant by this appeal can be obtained by him under section 2653a of the Code of Civil Procedure. ( Matter of Austin, 35 App. Div. 278.) But perhaps that fact does not relieve us from passing upon such cases when they are regularly brought before us on appeal. The evidence in this case as to the mental condition of the testatrix at the time of the execution of the instrument offered for probate, is conflicting, and perhaps under ordinary circumstances it would not be proper for us to reverse the decision of the surrogate upon such evidence, but it seems to be manifest from reading the surrogate's opinion. that when he came to the examination and weighing of the conflicting evidence in this case, he had a wrong conception of his duty in the premises; and he decides the case upon what he considers the nearest approach to justice as between the father and daughter, rather than upon the question as to whether in fact the testatrix was competent to make a will. The surrogate, after reciting that this is a controversy in which father and daughter are arrayed against each other, says: "As is usual in such quarrels, there is more bitterness than between persons not of kindred blood. From all the circumstances of the case, I am fully persuaded that right and justice demand that the husband should have the possession and use of the real estate effected by the will proposed for probate during his natural life, and that thereafter it should pass to the daughter, unencumbered by any act of the husband and father. This result, because of the estrangement of the parties, cannot be reached. If the will proposed is admitted to probate, it is quite probable that the husband and father will not be permitted to occupy or use the premises. If probate be denied to this will, a previous will gives the use thereof to the husband and father, and makes it liable for the payment of his debts. From the feeling manifested and expressed by the father against the daughter on the trial before me, I am fully satisfied that he would make sure that sufficient liabilities against him should be created to wholly deprive the daughter of any right or interest in the premises. I held the case under consideration for months, hoping that time would remove the bitterness of feeling, and that a compromise might be effected which would secure to each the rights above indicated. From what took place between the attorneys of the respective parties in my court, I am satisfied that such result was prevented by the refusal of the father to consent to any arrangement which would secure to the daughter any certainty of ever deriving any benefit from the property. The husband and father being eighty-two or eighty-three years of age, the value of a life estate to him would be about fifteen per cent of the value of the property, and the other eighty-five per cent, under the view of what justice and right requires, as above indicated, should pass to the daughter. It, therefore, becomes the duty of the court to make such decision in the matter as may be permitted from the evidence and the law of the case as will come nearest to what is considered to be just and right. This view would require that the proposed will be admitted to probate, and that the husband and father be by this operation deprived of the small interest that, by the rule of right and justice above stated, he should have, rather than by a refusal to probate the will deprive the daughter of her larger interest." And he concludes thus: "The evidence as to the capacity of the deceased to execute the will being conflicting, it is my duty to make such findings thereon as will subserve the interests of justice, and this because of the evident bias on the part of most of the witnesses offered by the contestant, I am able to do without violating any rule of law for the weighing of evidence." Without discussing or criticising these views of the surrogate, it is perfectly apparent that he allowed the fact that admitting the will to probate would only deprive the husband of fifteen per cent of the value of the property, while refusing to admit it to probate would deprive the daughter of eighty-five per cent of its value, and that justice and right required that such eighty-five per cent should pass to the daughter. Such decision was made for the purpose of securing to the daughter a very much greater value than that which the father would be deprived of, and such decision was made to insure what he considered justice as between the parties, rather than to determine what was the testatrix's mental condition at the time when she made the will. Under such circumstances I feel that we are not called upon in this case to give the weight that we ordinarily do to the decisions of a trial court upon questions of fact. I have examined the evidence with considerable care, and think that the interests of justice require that this case should be reviewed in the manner required by the Code. (Code Civ. Proc. § 2588.) I refrain from discussing the evidence and from giving my views thereon, so that upon a new trial the parties will be neither embarrassed nor benefited, nor the deliberations of the jury affected by the views of this court upon the questions of fact involved. The decree of the surrogate is hereby reversed, and a trial directed by jury, pursuant to section 2588 of the Code of Civil Procedure, of the question of fact arising between the parties; the order of reversal to be settled before Mr. Justice Herrick. All concurred, except Putnam, J., not voting; Merwin, J., in result.