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been taught to comprehend the conception of the spirit of the law so nobly expressed by Richard Hooker in The Laws of Ecclesiastical Polity, in these words:

"Of law there can be no less acknowledged than that her seat is the bosom of God; her voice the harmony of the world: All things in heaven and in earth do her homage, the very least as feeling her care and the greatest as not exempted from her power;—both angels and men, and creatures of what condition soever -though each in different sort and manner, yet all with uniform concert,-admiring her as the mother of their peace and joy."

You

II

COMMENTS ON WILL CONTESTS

IN NEW YORK*

OUR committee assigned to me the subject of Surrogate's Practice. To assume that I could speak with authority on that intricate subject revived a painful experience of thirty odd years ago when I became entangled in a maze of procedural complications. I had propounded two holographic codicils to the will of a wealthy American who had resided for many years in a foreign country. Without notice to the parties, the Surrogate made an order sending the matter to the Court of Common Pleas for trial. A motion there for a commission (the only way the necessary evidence could be obtained), was denied for want of power to issue a commission in a special proceeding. The Surrogate, who had the power in his court, refused to exercise it in a case pending in the Court of Common Pleas. The Court of Common Pleas declined for want of power to send the case back to the Surrogate's Court; and an application to the Surrogate for an order taking the case back to his court was also denied for want of jurisdiction. It was thus made impossible to prove the necessary facts; a discontinuance become necessary-and it was granted on a penalty of heavy costs. Such are the perils which attend inarticulation of Code provisions.

Address delivered at a meeting of the Association of the Bar of the City of New York, on January 13, 1921. Reprinted from Yale Law Journal for April, 1921.

While I do not profess a special knowledge of Surrogate's practice, some of my associates are such experts that I may complacently concentrate upon matters which require less of the skill of the chess player. And so I told your committee that I would make a few remarks, not on the technicalities of procedure, but on will contests, and I shall confine myself to certain general comments which experience in the trial of such cases has suggested.

A person defined by the statute as being interested may object to the probate of a will. The question whether he is related to the testator in a degree qualifying him under the statute to object, may be preliminarily presented. Jurisdictional facts, such as the residence of the testator, may also be tried by the Surrogate in advance, or they may be reserved for consideration by him until after the main issue has been determined. Where the interests of public charities are involved, the Attorney General, representing the state, may become a party. By a statute of 1886, the Surrogate has had the power in his discretion to transfer a probate proceeding to the Court of Common Pleas (and later to the Supreme Court), for trial by a jury. Since 1914 a party has had the right to demand a jury trial where there is a controverted question of fact. Formerly, the executors of a propounded will found themselves in the embarrassing position of being compelled to defend against an attack, and, if unsuccessful, personally to bear the expense of a contest. Now, however, the Surrogate may make a suitable allowance to cover such expense.*

Will contests may be based on a variety of grounds, such as the omission of the formalities of execution re

1 N. Y. Code Civ. Proc., sec. 2617.

2 Id., sec 2538.

a Id., sec. 2746.

quired by the statute, undue influence or fraud, lack of testamentary capacity, forgery, or revocation of the propounded instrument. The burden of proof rests upon the contestant except as to the factum and as to testamentary capacity.

Very slight proof is accepted by the courts to establish the fact that a will has been properly executed. Thus, in the case of the will of Homer A. Nelson, who in the early days of my practice was a state senator and a prominent member of the Poughkeepsie bar, the rule was laid down that if the attestation clause is shown to have been read and adopted by the testator, little additional proof of execution will be required. But the attestation clause of Senator Nelson's will omitted to recite that the testator had requested the witnesses to sign the will, and the only living subscribing witness denied that the testator had made such a request. A person superintending the execution of the will, however, had read the will in the testator's presence and had requested the witness to sign, and this was held to be tantamount to a request on the part of the testator. This is a sensible ruling, for we all know that a bare request by a testator to the witnesses to act is adequate, without a literal compliance with some of the other rather mechanical requirements of the statute.

Under the procedure now generally adopted the proponent offers formal proof of execution and capacity, the contestant introduces evidence in support of his objections, and the proponent closes in rebuttal. In a jury trial special issues are framed upon motion before the Surrogate, and on the trial juries are instructed to find upon such of them as are submitted, and also to make

4 Matter of Nelson (1894) 141 N. Y. 152, 36 N. E. 3.

a general finding. The Surrogate may determine not only the validity but also the construction and effect of a disposition of property, provided the question is suitably presented, in the proceeding for the probate of the will. The Surrogate may dispose of such matters in that proceeding or may reserve them for future consideration. Frequently questions of construction are reserved until the settlement of the executors' account, so as to avoid double proceedings.

Where fraud or undue influence is charged, much the same trial practice obtains as in actions for fraud at common law or in equity. A competent testator, subject only to provisions of the statutes relating to charitable bequests in a will, may leave his property to anyone he may select. He may cut off members of his family or any other person having a natural claim to his bounty. Injustice, capriciouness, and cruelty may be indulged in by a testator who is sane, and he may leave his property in such a manner as to be reprobated by all rightminded people, although such provisions may become an important element in proof of mental incapacity. Assistance in making his will may, of course, be sought, and few men omit to consult the members of their family and their legal advisers, and frequently their friends. Persuasion and even moral and intellectual pressure may be brought to bear, without becoming, within the meaning of the law, undue influence, unless it goes so far that the mind and the will of the persuader or the one exerting the pressure is substituted for the mind and the will of the testator. Even solicitation by an interested

5 N. Y. Code Civ. Proc., sec. 2615.

6 Decedents Estate Law, sec. 17 (N. Y. Cons. Laws 1909, ch. 18).

7 Dobie v. Armstrong (1899) 160 N. Y. 584, 55 N. E. 302; Horn v. Pullman (1878) 72 N. Y. 269; Shayne v. Shayne (1907, Sup. Ct.) 54 Misc. 474, 479, 106 N. Y. Supp. 34, 37.

8 Children's Aid Society v. Loveridge (1877)

70 N. Y. 387.

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