In re the Probate of the Will of Smith

Headnote

As to whether the provision of the Code of Civil Procedure (§ 2588) providing that where the reversal or modification “ by the appellate court ” of a surrogate’s decree, admitting a will to probate is founded upon a

question of fact, such court must make an order directing a trial of the material questions of fact by a jury, applies to appeals to this court in probate cases, qumre.

The provision has no application where the reversal is for errors of law only.

This was a motion to amend the remittitur herein, and for the framing of issues to be tried by a jury.

The appeal was from a judgment of the General Term affirming a surrogate’s decree admitting the will of Eliza M. Smith to probate. This court reversed the judgment. ( 95 N. Y. 516 .)

The court say:

“Assuming that section 2.588 of the Code applies to appeals to this court in probate cases, a point which we need not now determine, yet the section has no application to a reversal on questions of law, but only when the reversal is upon a question of fact. The reversal in this case was for errors in the admission of evidence, and not upon any question of fact.

“ The motion for the framing of issues is, therefore, denied. The case is doubtless a proper one for trial of the issues of fact by jury, but the jurisdiction to make an order for such trial, or to frame issues, does not, under the cireúmstances of the case, appertain to this court.”