In re Proving the Paper Alleged to be the Last Will & Testament of Swartz

This is an appeal to the jurisdiction of the surrogate for relief against an alleged mistake on the part of the testatrix. It involves the whole scope of the surrogate’s present jurisdiction in a proceeding for probate and construction. The arguments of counsel in this cause suggest to my mind important questions the consideration of which can no longer be postponed or passed over by me. The arguments of counsel have been unusually thorough and profound. Prima facie the script propounded as a will in this matter is, on the proofs of its execution, given under oath, entitled to probate. Factum of will, in other words, is established. This is conceded by all the counsel in the cause. But in a rather vague way, notwithstanding this attitude, the effect of a part of the will is sought to be rejected from probate. A mistake is alleged on the part of the testatrix, and this is made the basis of an opposition to the probate of the thirteenth and fourteenth clauses of the will propounded. This appeal is addressed to the powers of the surrogate sitting as a probate judge, and not to his power as a court of construction under section 2624, Code of Civil Procedure.

The powers of the surrogate as a court of probate are due primarily to the statute. Code Civ. Pro. § 2472. The section is very general in phrase. It confers jurisdiction on the surrogate “To take the proof of wills; to admit wills to probate.” The statute does not. define “ proof of wills ” or “ probate,” and such definition and the powers of the surrogate, in probate matters are referable to the jurisprudence

Long prior to any statutes conferring on surrogates those powers incidental to courts of construction it was held by Surrogate Bradford that the surrogate as an incident of his probate jurisdiction had power to refuse probate to part of a will if fraud or mistake was established. Burger v. Hill, 1 Bradf. 360 ; confirmed by Hill v. Burger, 10 How. Pr. 264 . This notable decision of this very learned probate judge has been much objected to in several states while followed in others. Right or wrong, the decision in Hill v. Burger is binding on me. It may be remarked that such power is distinctly recognized in the law which is commonly taken as the exemplar of our own authority in cases of doubt and difficulty not settled by the law and practice of this state. Allen v. McPherson, 1 H. L. 191; Goods of Duane, 2 S. & Tr. 590; Goods of Oswald, L. R. 3 P. D. 162; Morrell v. Morrell, L. R. 7 P. D. 68, 1882; Plume v. Beale, 1 P. Wms. 388; Billinghurst v. Vickers, 1 Phill. 187 . Cases in the Ecclesiastical Courts of England, although decided since our independence of England, are still of some indirect authority here. The foreign law of probate, like the foreign law relating to notaries or to admirality matters, stands on a different foot in this court from other foreign law, by reason of the similarity and universality, of operation

That a court of probate has no power incidental to its general probate jurisdiction to add words to a will, even if omitted by mistake, is often asserted. Theobald Wills, 29; Mortimer Probate Law, 103; 1 Jarman Wills (6th ed.), 486; Burger v. Hill, 1 Bradf. 374 ; Creely v. Ostrander, 3 id. 107. While this is generally true, these statements all appear to have overlooked a decision to the contrary in White v. Barber, in the year 1771, 5 Burr, 2703. This case before the Revolution is binding here. Oastell v. Tagg, 1 Ourteis, 298, proceeds to the same point, and there are others to the same effect. A power to strike out a will prima, facie would seem to imply a correlative power to insert proper words sometimes omitted by mistake. But much depends on the Statute of Wills for the time being in force. Matter of Goods of Wilson, 2 Curteis, 853. But as this particular point is not now here, it need not be considered at this time.

The correction of the alleged mistake of this testator is not addressed to the jurisdiction committed to the surrogates of this state by section 2624 of the Code of Civil Procedure. It may be well, in passing, to consider the general scope and purport of that section. By reference to it it will be perceived that it is only after a will is determined to be entitled to probate that the surrogate may sit as a court of construction. It is true that the factwm, of will may be formally adjudged by the same decree which construes the will so

The extent and the exercise of the jurisdiction of the surrogate as a court of construction are controlled either by' the new section 2624, Code of Civil Procedure, or by the decisions of our own state, or in the absence of such decision by the law imposed on us by constitutional limitation. So clear a proposition needs no citation of authority. The power of courts of equity over wills is referable to the want of jurisdiction of courts of law, but more particularly to their jurisdiction over mistakes and trusts. For this purpose executors have been regarded in equity as trustees.

A court of equity would in no case correct an erroneous supposition of the testator if he knew the contents of his will. Burger v. Hill, 1 Bradf. 372 ; Walpole v. Cholmondeley, 7 T. R. 138, s. c. Lord Walpole v. Lord Orford, 3 Ves. 42; Matter of Bywater, 18 Ch. D. 17. The earlier editions of Jarman on Wills review the English cases on this point, although the sixth edition omits them. 1 Jarman Wills (4th ed.), 353-359. The language of section 2624, Code of Civil Procedure, invests the surrogate' with a larger jurisdiction over the construction, validity and effect of wills than that formerly possessed by courts of equity I have no doubt. Matter of Mount, 185 N. Y. 162 , 167. Ho trust or mistake need be involved in order to invoke the jurisdiction granted to the surrogate, and he may now pass on the validity of legal as well as of equitable titles derived under the will before him. Matter of Mount, supra. But this at bar is not a case of construction, but of probate law only.

That the surrogate may under section 2624, Code Civil Procedure, sometimes consider oral or extrinsic evidence in a proper case, in order to enable him to construe or determine the validity of a will is, in my mind, not open to doubt, and I shall remain of this opinion until directly advised to the contrary by my superiors in the appellate courts. Unless the surrogate has power to consider extrinsic evidence in a proper case of construction, falling under section '2624, the beneficial effect of that section will be nullified. The surrogate’s jurisdiction of construction will in that event be con

But the point here is that section 2624, Code Civil Procedure, is not an authority for the surrogate’s jurisdiction to construe the offensive clauses out of the will. If any relief is to be granted-by the surrogate it must have reference to the power of the surrogate as a probate judge. In this view section 2624 of the Code of Civil Procedure becomes quite immaterial and is outside of consideration in this matter now before me. This is not a case of construction, and construction is not properly invoked or involved. Jones v. Hamersley, 4 Dem. 437 ; Matter of Mount, 185 N. Y. 162 , 167. It is possible that a court of equity may consider some form of relief for discrepancies apparent on the face of the will as proved, taking into just consideration the claims of those entitled also under the trust deeds. But such matters are not properly cognizable here (Milner v. Milner, 1 Ves. Sr. 106), and their consideration should not be volunteered.

Formerly and at present the only remedy in cases of mistake on the face of a will is in a court of probate. 1 Jarman Wills (6th ed.), 493, and cases there cited; Burger v. Hill, 1 Bradf. 372 , 373; Allen v. McPherson, 1 H. L. 191. If such will is admitted to probate there is no remedy in any other court. Berger v. Hill, 1 Bradf. 373 .

While I think that the parties before me may have by the course hitherto taken virtually put themselves out of court and technically assented to the probate of the script propounded, and in consequence I might be relieved from any further consideration of this matter, yet this is too

While I am bound to hold, in view of the decisions of this state already noticed, that there are some kinds of mistake on the part of testatrix, such as mistakes of draftsmen in preparing wills or of engrossers in the engrossment of the same, or mistakes induced by fraud on testators which may possibly be corrected in this court in a proper case, yet the mistake of this testatrix concerning the legal effect or revocability of her trust conveyances is not such a mistake as can be corrected here. The same point is adjudged in England. In bonis Davy, 1 Sw. & Tr. 263; Guardhouse v. Blackburn, 1 P. & D. 109; Harter v. Harter, 3 id. 11; Collins v. Elstone, 1893, P. 1; Beamish v. Beamish, 1894, 1 Ir. 7; Theobald Wills, 719. The true principle applicable in this cause is, as I conceive, well stated in the sixth edition of Jarman on Wills, 486, and in this cause that passage has my approval: “ If, however, the testator knows the contents of his will and erroneously supposes that it will not have the effect which the law gives it.

The principle of all the American and English adjudications hearing on the point before me has now been briefly considered. It remains to consider two remarkable instances cited from the Roman Law in the very elaborate argument of the learned counsel for Mrs. Eisenbach. I may remark that there are many occasions in this court when it is held that the Civil or Canon Law well serves to illustrate a derivative principle frequently applied in this court, or, in the total absence of modem authority, as a guide for this court. I referred to the authorities on this point in my judgment on the Will of Van Ness, 78 Misc. Rep. 592 . But I fear the instances now cited by the learned counsel in this matter are not within the limitations there stated. Let us examine them. In the Latin of counsel’s argument, the first instance is taken from the de Orutore of Cicero (1, 38, 175) as follows: “ Pater credens filium swum esse mortamm alterwm, institidt haeredem; filio domum redewnte, hujus institutionis vis est nullaI do not find the exact quotation in the de Orutore. But the case is there mentioned in other words not materially different. On its face this case would appear to be addressed to a mistake of fact by a testator and to be very much in point here, but it is not so. Cicero, it will be observed, does not furnish us with the judgment in the case. The judgment is, however, given by Valerius Maximus (VII. 7, 1). The son in question was a soldier, and he succeeded in the case. By the merest chance I happened to have read in a late book a discussion on this very case or I should know little of it. Girard Manuel de Droit Romain, 853 et seq. The case in Cicero did not turn at all on a mistake of fact on the part of testator, but on the law relating to the exherison of a

The proponents are. entitled to a literal probate of the script propounded as the last will and testament of Mrs. Henriette Swartz. Eor the reasons fully stated no construction is,necessary or proper at this time in this court.

Decreed accordingly.