In re the Probate of the Will of Gaines — 56 N.Y. St. Rep. 172

Majority

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In the Matter of the Probate of the Will of Myra C. Gaines, Deceased. William W. Christmas and Rhoda B. Kennedy, nee Christmas, App’lts.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Appeal—Taking testlmonv-

While the general term has power to permit the taking of further testimony upon an appeal to it in a probate case, such power should not be exercised after the lapse of considerable time since the decree was entered, especially when no evidence upon the issue was produced by the appellant before the surrogate.

Application to take further evidence in general term on appeal from surrogate’s court.

W. T. Houston, for app’lts; W. T. Gilbert, for resp’t William H. Wilder; John A. Grow, for resp’ts Perkins and Evans; William H. Ford, special guardian for Zulime Whitney; John G. Clark, special guardian for James M. Christmas.1

Mrs. Myra G. 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. Chestner and Bhoda B. Chestner appeal from the part of the decree which admitted the will of January 8, 1885. There was proof given before the Kings county surrogate tending to show that the deceased was a resident of Kings 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 The question of residence was presented by the objection to the probate, and was withdrawn ; but the proof of the probate of the will occupied some sixteen days. The jurisdiction of the surrogate depended on the record before him; andwhile the power exists under § 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

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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.