functions of judge and jury were misunderstood or confused, as the law reports show, and the practice, at best, was far from ideal or according to common-law precedent. It is these precedents which regulate all trials by jury in this State. Whether old section 2653-a ever worked justice as compared with the still older law on wills, I much doubt. But that section has now, in any event, disappeared unmourned in the limbo of curiosities and anomalies of the law. I do not consider it necessary, at this time, to point out the differences between other repealed sections of the old Code which might be regarded as parallel.

As the rules regulating onus probandi in proceedings of this character are not yet settled by the decisions of this State except on pleas of undue influence, duress and fraud, I shall at this time not refer to them further than to say they present very serious questions in the as yet not fully developed stage of our jurisprudence. To complete a corpus juris of our own will

take several centuries more.

This opinion is perhaps already too extended, but at the outset of the novel proceedings inaugurated by the new Surrogates' Law it is necessary that all the things to which I have alluded should be considered. I have already held that the verdict of a jury is not made conclusive on the surrogate by statute (Matter of Plate, 93 Misc. Rep. 423; Matter of Eno, supra), but this was in conformity with Hawke v. Hawke (82 Hun, 439, 445), where the difference was pointed out between a statute making a verdict conclusive and one not making it conclusive. A motion for judgment on the answers of the jury and a motion for a new trial are in accord with the appropriate sections of the Code cited. That these motions should be deferred and not made at once on the rendition of the verdict is in conformity with common prudence, in view of the novel situations created by the new Surrogates' Law.

The motions for judgment and a new trial having come on

to be heard after mature and deliberate examination of the record of the trial in this matter, I am convinced that there was no serious error and that it was my duty and judicial obligation to direct a verdict in favor of the will. Had I left the matter to the jury and had they found against the will, the verdict must have been set aside as against the weight of evidence. (Herring v. Hoppock, 15 N. Y. 409; Storey v. Brennan, id 524; Cagger v. Lansing, 64 id. 413, 417; Moore v. Bristol, 2 Wkly. Dig. 293; Birdsall v. Patterson, 51 N. Y. 43, 47, 48; Browne v. Murdock, 12 Abb. N. C. 360; Dobie v. Armstrong, 160 N. Y. 594; Hagan v. Stone, 174 id. 320.) The motion for a new trial must therefore be denied and the motion for decree of probate on the findings of the jury granted. Settle decree on two days' notice, in conformity with this direction, providing that the will propounded for probate is the last will and testament of the testatrix, and as such entitled to probate.

Decreed accordingly..

Matter of the Petition of NELLIE W. DUNN to Prove the Last Will and Testament of MARTHA ANNA BARLOW, Deceased.

(Surrogate's Court, Kings County, March, 1916.)

WILLS-PROCEEDING FOR PROBATE IN SURROGATE'S COURT-WHEN JURY TRIAL DEMANDED NEW TRIAL-EVIDENCE-VERDICT-WHEN MOTION TO SET ASIDE VERDICT DENIED.

The verdict of a jury in a proceeding for the probate of a will in the Surrogate's Court is conclusive, and while the court is under the serious responsibility of setting aside the verdict, if, upon grounds well recognized, it should not endure, there can be no interference with the verdict unless it be accompanied by an order for a new trial by jury, and if the verdict be not set aside there is no power in the court to proceed to decree in defiance of the findings of the jury.

In a proceeding for the probate of a will in which a jury trial had

been demanded the jury by direction of the court found that the instrument was duly executed and was not procured by fraud or undue influence, and upon submission to them of the question as to testamentary capacity of testatrix rendered a verdict that she was possessed of testamentary capacity. The contestant moved to set aside the verdict and for a new trial. On the hearing at which no exceptions taken at the trial were presented there was added in behalf of the contestant the assertion that the verdict as to testamentary capacity was not conclusive and that, notwithstanding, the court remained under the duty before admitting the will to probate to inquire into all the circumstances and to be satisfied otherwise than by the conclusion of the jury that the will was genuine and valid in its execution, and that testatrix was in all respects competent to make a will and was not under restraint.

Held, that the evidence being amply sufficient if believed by the jury to justify their finding, and there being no indication that their verdict was affected by other than fair and rational consideration, the motion so far as it seeks an independent decision by the court on the question of testamentary capacity will be denied as will also the motion for a new trial.

PROCEEDING upon the probate of a will.

Harold E. Lippincott, for contestant, for motion.

Frank Harvey Field, for proponent, opposed to motion.

KETCHAM, S.- In a proceeding for the probate of a will, there has been a trial by jury, upon demand therefor in which were presented the questions of execution, testamentary capacity and undue influence.

By direction of the court, the jury found that the will was duly executed and that it was not procured by fraud or undue influence. Upon submission to the jury of the remaining question, a verdict was rendered that the testatrix was possessed of testamentary capacity.

At the close of the trial, the only application of the contestant was that the verdict be set aside and that a new trial be granted. The motion was adjourned for a deliberate hearing, at which

no exceptions taken at the trial were presented, and the sole question, as defined when the motion was made, was, whether or not the verdict as to testamentary capacity should be set aside, and a new trial by another jury be awarded.

There was then added, in behalf of the contestants, the assertion that the verdict was not conclusive, and that in its despite the court remained under the duty before admitting the will to probate to inquire into all the facts and circumstances, and to be satisfied, otherwise than by the conclusions of the jury, that the will was genuine and valid in its execution, and that the testatrix was in all respects competent to make a will and was not under restraint.

With this suggestion engrafted upon it, the original motion. divides into inconsistent branches.

The moving parties' demand for a new trial has no reason for its being, except in the theory that the finding of some jury, now or hereafter, is the sole adjudication upon which probate must be granted or denied. It excludes all right of the surrogate to impose his own determination upon the issues.

On the other hand, the prayer that the court shall itself consider the questions upon which probate depends, and thereupon enter its decree, does not seek such new trial, but, on the contrary, would not only avoid the present verdict, but would make another impossible.

Hence, both the remedies sought by the contestants cannot be had. If the surrogate shall impose his own judgment upon the issues, in disregard of the verdict, the motion for a new trial must abate.

If the law in its express and manifold provisions for a new trial (Code Civ. Pro., $$ 2539, 2770, and §§ 970, 999, 1002, 1003, made applicable to this court), intends that the present verdict, if approved, or another verdict, if required, shall be the basis of the decree, then it becomes impossible for the surrogate to exercise any right or duty of independent inquiry.

Which, then, of these two forms of relief, is the only one which the aggrieved party can ask, since he cannot avail himself of both?

The question is of the utmost gravity, for if this court should now substitute its own judgment for the finding of the jury, there would remain no room to apply the provisions of the Code cited supra which seem to ordain and regulate the motion for new trial.

In support of the claim that the surrogate may now make his decree in disregard of the verdict, there are cited the opinions of Mr. Surrogate FOWLER. (Matter of Plate, 93 Misc. Rep. 423; Matter of Eno, 94 id. 100; Matter of Dorsey, id. 566.) If the views of the learned judge were in anywise related to the disposition of the matters in which they were pronounced, this court would generally be inclined to bow to them, not only as the fruitage of an incomparable erudition, but as the adjudication of a court dignified in its station and its person.

None of the expressions presently to be quoted was, however, other than an incident in an abstract review of the general subject of trials by jury in probate cases, and the disposition of the motion which, in each instance, was then before the court. could not have been affected by the truth or the untruth of the observations upon which the contestants rely. which the contestants rely. Hence, the language of the learned judge, while of profound interest to those who have learned to measure the accuracy and sobriety of his judgments, still lacks all authority save that which is gratefully accorded to the personal reflections of a writer of distinct eminence.

Says Mr. Surrogate FoWLER: "The surrogate is still the only officer authorized to probate wills in this State. The Code yet provides that in any and every probate proceeding it is the surrogate and not the jury who must be satisfied of the 'genuineness of the will, and the validity of its execution' (§ 2614, Code Civ. Pro.). When the surrogate is not satisfied with the ver