Majority
p. 312(74 Hun, 94.) In re GAINES’ WILL. (Supreme Court, General Term, Second Department. December 1, 1893.) Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Headnote
Contest of Will—Motion after Appeal to Take Further Evidence.■On the contest of a will, the question of testatrix’s residence in the state was presented by the objection to probate, but was withdrawn, and there was an appearance of abandonment of the issue of residence. Five attesting witnesses to the will were examined and cross-examined, and the tailing of evidence occupied 16 days. There was evidence tending to show that testatrix was a resident of the county, and the surrogate .admitted the will to probate. Held, that a motion by the contestants, made in the supreme court more than two years after the decree was entered, to take further testimony as to the residence of testatrix, would be denied. 1
Proceedings for the probate of two papers purporting to be the wills of Myra Clark Gaines, deceased,—one dated January 5, 1885, and the other dated January 8, 1885. A decree was entered June 25, 1891, admitting to probate the instrument dated January 5, 1885, as the last will of decedent, and refusing to admit the other paper to probate. Julietta Perkins and Maria P. Evans, proponents of the latter alleged will, appeal from the whole of such decree, and William W. Christmas and Rhoda B. Kennedy, contestants of both alleged wills, appeal from that part of the decree admitting the former instrument to probate. In September, 1893, the appellants moved for permission to take further testimony.
Denied.
John A. Grow, (Belva A. Lockwood and W. W. Goodrich, of counsel,) for appellants.
Wm. T. Houston, for appellees William W. Christmas, Rhoda B. Kennedy, James M. Christmas, William W. Whitney, and Zulime Whitney Summers.
W. T. Gilbert, for respondent William H. Wilder.
William H. Ford, Special Guardian for Zulime Whitney.
John C. Clark, Special Guardian for James M. Christmas.
Mrs. Myra C. Gaines died on the 9th of January, 1885, at the city of New Orleans, state of Louisiana. Two papers which purported to be her last will were offered for probate. One was rejected as not being the will of testatrix, and the other was rejected as informally executed under the laws of the state of Louisiana. The same two papers were presented to the surrogate ■of Kings county for probate in November, 1889. The will which was rejected as forged was again rejected for the same reason, and the other will was proven and admitted to probate. The proponents of the rejected will appeal from the entire decree. William W. Christmas and Rhoda B. Kennedy appeal from the part of the decree which admitted the will of January 5, 1885. There was proof
p. 313
given before the Kings county surrogate tending to show that the deceased was a resident of Bangs county when she died, and the surrogate so decided. The application to take further evidence should •be denied. The question of residence was presented by the objection to the probate, and was withdrawn, but the proof of the probate of the will occupied some 16 days. The jurisdiction of the surrogate depends on the record before him; and while the power exists, under section 2586 of the Code, it should not be exercised after such a lapse of time since the decree was entered, and especially to open the case in this court, where no evidence as to the residence of testatrix was produced by the contestants before the surrogate. On the contrary, there was a strong appearance of an abandonment of the issue of residence. The parties should therefore be confined to the record appeal. There were five attesting witnesses to the will, who were each presented to the surrogate, examined, and cross-examined. No case is therefore made for an order to take further testimony, and the motion should be denied, with costs. All concur.