In re the Estate of Gleason

Fowler, S.—

This is a cross-motion for judgment on the verdict of a jury and for a new trial. But one question was left to the jury by the surrogate, viz., the capacity of the testatrix to testaméntate. The jury answered this question in the affirmative, and as I myself would have answered it had I been still constituted judge of the facts in all probate proceedings. In those contested probate inquisitions where jury trials are demanded “ juratores sunt judices facti ” by the new Surrogates’ Law of 1914. When juries find verdicts according to the evidence their verdicts, of course, must stand; otherwise not. Under the new statute there is no provision which makes the verdict of a jury conclusive upon the surrogate in a contested probate proceeding. There is, in other words, no expression in the law which makes the verdict binding on the surrogate or relieves the surrogate from the paramount obligations of his office stated in section 2614 of the Code of Civil Procedure. I went over this point fully in Matter of Vetter (95 Misc. Rep. 63). If the verdict here did not satisfy me I consequently should not hesitate to set it aside and resubmit the question to another jury. I. am aware that it is thought by some surrogates that the verdict of a jury is sufficient to relieve their conscience from the independent opinion made obligatory on all surrogates by section 2614 of the Code of Civil Procedure. I know of no decision, however, where the point has been properly decided.- It can only be decided when a surrogate shall feel it his conscientious duty to ignore the verdict of a jury and " suo motu ” direct a further submission of the issue to another jury. On an appeal from that direction the point will ultimately have to be decided. Wiith due deference I may say that I am not impressed by the views of some surrogates that the verdict of a jury relieves them from the necessity of examining the propriety of the verdict, after the manner of the chancellors when verdicts were found upon devisavit vel non issued out of chancery for trial hy jury. By the letter of the new law we stand just where the chancellors stood with reference to verdicts of juries. They were not made binding on the chancellors. I believe the old chancery practice to be the proper practice for surrogates under the new law in contested probate proceedings aided by juries. All I can say is that if the official consciences of other surrogates are constructively satisfied with any kind of verdicts rendered hy juries in this court mine is not. I rather regret that my official conscience cannot be easily relieved of what I regard as a statutory obligation binding on me. (Code Civ. Pro., § 2614.)

Motion for judgment of probate granted. The motion for a new trial is-not tenable and is denied.