In re the Probate of Will of Wilcox

was presented -for probate, it was different from, and not the same paper executed by the testator, and that it had been willfully and. intentionally changed and altered in material parts by parties in interest since the death of the decedent. Upon these issues the parties went to trial before the surrogate. The proponents examined the subscribing witnesses to the will, and they were cross-examined at some length, and both examinations-were confined to-the sole question of the due execution of the instrument. Upon the conclusion of the examination and cross-examination of the-subscribing witnesses the proponents offered the instrument in evidence, and, upon the objection of the contestants that the same-had not been sufficiently proved, the surrogate refused to admit it-to probate, and held that there was a failure of proof as to its due execution. Probate Was refused on that ground alone.

The contestants offered no proof in the case. ISTo one but the-subscribing witnesses had been examined. A ■ decree was ■ there- - upon duly entered refusing probate, and from such decree the-proponents appealed to the general term of the supreme- court. That court held that the evidence of the subscribing witnesses-sufficiently proved the due execution of the will, and thereupon it reversed the decree of the surrogate and directed that the will should be admitted to probate. From the judgment entered upon this order of the general term the next of loin have appealed to-this court

The judgment of the general term recites that the decree of the-surrogate was reversed upon the facts, and the findings of. thcsurrogate were therein disapproved. As there was in the record nothing but the evidence of the two subscribing witnesses, and! neither in any way-contradicted the other, and it was simply a. . question as to what inferences should be drawn from testimony not conflicting, but which did'not, in exact words, prove the due-execution and publication- of the instrument, the case seems to.be-within our decision in the Matter of Hunt, 110 N. Y., 278 ; 18 St. Rep., 118 .

In that case the only testimony was that of the subscribing-witnesses, such testimony not being contradictory, yet not proving- " in exact language the existence of the necessary facts. The surrogate held the testimony not sufficient, while the general term was of a contrary opinion and reversed his decree, and directed, him to admit the will to probate. The judgment of the general term in that case contained the same statement as in this, viz. v that the decree of the surrogate was reversed upon questions of fact. We held that notwithstanding such statement, where it appeared that all the evidence was returned, we" could look at the-case and seeif there were any real conflict, and if not, the general term, in reversing the surrogate, had the power to itself decree the admission of the will to probate where it simply differed.with, the surrogate in regard to the proper inferences to be drawn from evidence not conflicting. A question of fact might possibly arise-upon evidence not conflicting in terms, where inferences might, be drawn either way, and where a decision either way would not be considered as against evidence. But here it does not seem to>

us that there is but one fair and legitimate inference properly to-be drawn, and that one in favor of the proof of due execution.

In the proceeding now before us there is, however, another issue which was properly made before the surrogate, and that was. as to the alleged alteration of the instrument .after its execution by the testator. That issue has never been tried. No evidence was given upon it before the surrogate. There was no occasion to do so. The surrogate, upon 'the conclusion of the evidence offered on the part of the proponents upon the question of the due execution of the will, held that its proper execution had not been proved, and upon that ground refused to admit it to probate. There was, therefore, no necessity for the contestants, in-view of a decision in their favor, to ask to be permitted to give-evidence upon another issue. Probate of the will -had been refused, and that was all that the contestants asked or desired. The general term, upon reversing the surrogate’s decree, should, therefore, have remitted the proceedings to him for the trial of the issye as to the alteration of the proposed will after its. execution.

In the case of Dack v. Dack, 84 N. Y., 663 , the general term, made a decree similar to the one made here, and this court held that it should have remitted the case to the surrogate to be heard upon the question not theretofore passed upon by him. There is nothing in the Code that we have been referred to which changes-the rule thus laid down in the case of Dack v. Dack, and we think the judgment of the general term should be modified by providing for sending the case back to the surrogate of Monroe-county to try the issue as to the alteration as set up in the contestants’ grounds of contest. The costs should abide the final result in the surrogate’s court and be provided for as he may-think proper.

All concur.