Majority
p. 143NEW YORK GENERAL TERM. February, 1850. Before Edmonds, Edwards and Mitchell, Justices. In the matter of Henrietta Hicks’ will.
Headnote
On appeal from a decree of the Surrogate refusing to admit a will to probate, where the decree has been set aside, and a feigned issue awarded, and the case is in this court only for the purpose of trying such issue, the question whether the appeal has abated by the death of the appellant, can be disposed of only in the Surrogate’s Court.This was an appeal from a decree of the Surrogate of New York, refusing to admit a will to probate. The appeal was heard before the late circuit judge of the First Circuit, and the decree reversed, and a feigned issue awarded, to be tried under the statute, at the Circuit.
Alter the issue was awarded, and before trial, the appellant
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died, and the respondent applied to one of the judges, at Chambers, for an order compelling the representatives of the appellant to revive the proceedings, or for a stay of proceedings until such revival. The order was refused, and the respondent appealed to the General Term.
Waring, for respondent.
O'Conor, for appellant.
We fully concur with the judge at Special Term. This court has the case merely for the purpose of trying the feigned issue. Eor all other purposes it is in the Surrogate’s Court, and to that it must ultimately go back for final determination — and there the question of revival or abatement properly belongs,
The order of the Special Term must therefore be affirmed, with costs. ■