Originally, the governor of the province, by grant of the Crown, had probate jurisdiction. At an early day in our colonial history the jurisdiction became vested in courts of probate, and then in the Court of Chancery, to whose powers and jurisdiction the present Supreme Court succeeded. The best view seems to be that that court now possesses probate jurisdiction as the Ordinary." Its power as the prerogative court of original jurisdiction was confirmed to it by the Constitution and embraces the entire scope of the probate jurisdiction of the old ecclesiastical courts. That being so it has

40

If it chose to do so,

power to rehear the case at large. it might take evidence and proceed as in a rehearing in equity.11 Without specific reference to its historical origin, section 1317 of the Code of Civil Procedure affords a statutory basis for the excercise of this broad power, for it provides that the Appellate Division "may reverse or affirm, wholly or partly, or may modify the judgment or order appealed from" and may

"render judgment of affirmance, judgment of reversal and final judgment upon the right of any or all of the parties, or judgment of modification thereon, according to the law, except where it may be necessary or proper to grant a new trial or hearing when it may grant a new trial or hearing.'

With more specific reference to the ancient probate power of the Supreme Court, section 2763 of the Code provides that where an appeal is taken on the facts,

40 Matter of Brick (1862, N. Y. Surro.) 15 Abb. Pr. 12; Matter_of_Martin (1913, Surro.) 80 Misc. 17, 141 N. Y. Supp. 784; Vanderbeyden v. Reid (1826, N. Y.) Hop. Ch. 464.

41 See Baylies, New Trials and Appeals (2d ed.) 115; Matter of Gaines (1895, N. Y. Sup. Ct.) 84 Hun. 520, 32 N. Y. Supp. 398; Burger v. Burger (1888) 111 N. Y. 523, 19 N. E. 99; Clapp v. Fullerton, supra note 12; Matter of Warner (1900) 53 App. Div. 565, 65 N. Y. Supp. 1022; Matter of Spondre (1917, Surro.) 98 Misc. 524, 162 N. Y. Supp. 943; Matter of Weed (1911) 143 App. Div. 822, 127 N. Y. Supp. 966; Matter of Rice (1903) 81 App. Div. 223, 81 N. Y. Supp. 868.

"the appellate court has the same power to decide the questions of fact which the Surrogate had; and it may in its discretion receive further testimony or documentary evidence and appoint a referee."

As the trial by jury is not a constitutional right, the provision of the Code vesting in the Appellate Division original jurisdiction to grant a remedy, is not unconstitutional. There have been cases, as I have already pointed out, where the Appellate Division upon reversing the decree of the Surrogate denying probate after a jury trial, have directed affirmatively that the wills be admitted to probate. But in spite of the practically unlimited power of the Appellate Division to deal with the facts, an increase in the number of will contests has undoubtedly been caused by the hope of contestants that results can be obtained from juries which could not have been expected from Surrogates, and that even if verdicts are not sustained by the Appellate Division, at least they may result in a compromise.

In a case tried by the Surrogate of New York County several years ago, probate was refused on the ground of lack of testamentary capacity and of undue influence.12

On appeal the degree was reversed and I tried the case for the contestant in the Supreme Court before a jury. The court withdrew the issue of undue influence, and a verdict was rendered against the will on the ground of lack of testamentary capacity. This verdict was set aside and a new trial ordered. The contestant could have gone back for a new trial or appealed from the order setting aside the verdict. But the proof was such that the Appellate Division would probably have affirmed the order and a new trial would

42 Matter of Cutter (1915, Surro.) 89 Misc. 663, 154 N. Y. Supp. 250. 43 Matter of Cutter (1916) 175 App. Div. 647, 162 N. Y. Supp. 545.

have resulted, unless an appeal had been taken to the Court of Appeals. Perhaps the case might have ended by the decision of the Court of Appeals, but if we had elected to take a new trial, and there had been the same result, we would have been on our way a third time through the Appellate Division to the Court of Appeals. A vista of unending litigation was thus opened up and everybody finally agreed that the best thing to do was to settle the case; and that we did, substantially defeating in many material respects the wishes of the testatrix as expressed in her will.

The very nature of will contests involving testamentary capacity is such that they require an investigation of the entire life history of the testator and that protracts them for many days and sometimes many weeks. The Eno trial occupied more than three months; and a case I tried before Surrogate Cohalan and a jury last spring extended through more than six weeks. The cost of such trials to both the state and decedents' estates is

enormous.

An address on will contests would be incomplete without some observations upon the rules of evidence especially affecting them; and first I deal with medical expert testimony already alluded to.

The process of eliciting from medical experts answers to hypothetical questions concerning mental capacity, has come to be a highly artificial and a wholly unconvincing performance. Both juries and the courts largely ignore such evidence, seeking as a basis for their deductions evidence showing objectively capacity of a testator to attend intelligently to his current affairs. The refinements of the medical science applied as they are to facts postulated in an interminable question prepared by

counsel, interest them chiefly as intellectual gymnastics. They usually dismiss the learned medical disquisitions with ill-concealed amusement. Many years ago Surrogate Rollins said that an expert physician was called as a witness because his pre-ascertained views met the necessities of one of the litigant; and he added that the gist of the questions propounded to them to establish insanity was "if the person whose mental condition is the subject of inquiry is of unsound mind, is he sane or is he insane?"; and that on the other hand, on cross-examination the question asked by opposing counsel resolved itself into the interrogatory "But if on the contrary this person of whom you are testifying is of sound mind, is he insane or is he sane?" This is now substantially the view of courts. Thus the Appellate Division has held that "the proof of experts based upon a hypothetical question in opposition to proof showing . . intelligence, scarcely, if at all, raises an issue for a jury;" and the Court of Appeals in effect has held, as we have already said, that the uncontradicted evidence of three medical experts does not constitute a scintilla of proof requiring the submission of a case to a jury.

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45

And so this kind of evidence has become an excrescence upon our court procedure. This situation ought to be of serious moment to the medical profession, which may well consider whether its dignity and usefulness is not being impaired by the slight respect paid to views asserted to be based on established principles of the medical science. The juridical method by which courts seek to determine whether a man is competent to make a will is quite different from the theoretical process of

44 Phillips v. Chater (1882, N. Y. Surro.) I Dem. 533, 545-546.

45 Pettit v. Pettit, supra note 9.

46 See notes 37, 38 and 39, supra.

the medical expert witness. It resembles more the process which alienists themselves adopt in examining a living patient; for they rely upon concrete objective symptoms ascertained by tests which experience teaches them to apply. In other words, they have a process corresponding to cross-examination, by which they seek to ascertain truth. But medical men, testifying as expert witnesses, make deductions from assumptions embodied in hypothetical questions, being asked to accept statements of lay witnesses as to symptoms which in their day-to-day practice they would not think of accepting without subjecting them to the tests referred to. It is impossible for the medical profession by theoretical expositions to change the judicial process of investigation. It is too firmly embedded in our jurisprudence. Furthermore, while it is not infallible, scientifically it is subject to less weighty objections than an investigation based on the artificial hypothetical question process. But whether that is so or not, it is certain that the conflict between the two methods is ineradicable; and the unfortunate condition remains that by the present system litigants are subjected to burdensome expense, and the time of courts and juries is unduly occupied with evidence which, in the main, is treated with scant respect.

There are other rules of evidence to which we still cling, although they seem to me to be anachronisms.

Section 828 of the Code of Civil Procedure provides that a person shall not be "excluded or excused from being a witness, by reason of his or her interest in the event of an action or special proceeding;" but this is qualified by exceptions contained in sections 829, 834, 835, and 836, which keep in force some of the ancient disqualifications of witnesses based on interest.