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People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

ing of the $15,000, in the clause from which we have quoted, it is said that plaintiffs had "no right of cancellation," which would seemingly indicate that they had agreed to secure and maintain the full amount of $15,000. Here, if the rule of construction is to be applied that it will be presumed that the parties intended to express something by the language used, and if the practical construction which the parties themselves have placed upon the contract is to govern, then it seems to us that the view for which the defendant contends should prevail in holding that it was the intention to have reinsurance to the extent of $15,000, and that under the defendant's policy of $5,000 it was to be responsible in the proportion that the latter bore to the $15,000, viz., one-third of the loss. For this alone, therefore, the plaintiffs are entitled to judgment. The judgment as entered should accordingly be modified to that extent, and as so modified affirmed, without costs. All concur.

PEOPLE EX REL. ALBERT T. PATRICK, APPELLANT, . FRANK T. FITZGERALD, AS SURROGATE, ET AL., RESPONDENTS.

SUPREME COURT-APPELLATE DIVISION-FIRST DEPARTMENT-JUNE 1, 1902.

S$ 2568, 2617, 2636, 2637, 2638.

Writ of Prohibition. Probate Proceedings Involving Two
Contested Wills.

A writ of prohibition lies only where there is a want of jurisdiction

or where the court, judge or other tribunal is proceeding in excess of the jurisdiction conferred.

People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

Authorities regarding it as applicable to prohibit proceedings "contrary to the general law of the land” refer to proceedings with

out permitting a party to be heard, and this means no more than excess of jurisdiction.

Errors of law or procedure must be corrected by appeal, and a writ of prohibition is not designed to regulate admission or rejection of evidence or the proceedings of an inferior court having jurisdiction.

The right to an adjournment rests in discretion, reviewable only by direct appeal, and the question of an adjournment of civil proceedings, arising out of the same facts as pending criminal proceedings, until the determination of the criminal proceedings, is not a matter of strict legal right, reviewable by prohibition, but involves the exercise of discretion, reviewable only by direct appeal.

A surrogate has jurisdiction to decide whether to dismiss probate proceedings for want of proof, or to continue the proceedings to permit the presentation of further evidence, and his dismissal for want of proof would not be a dismissal upon the merits. A claim of privilege against self-incrimination, advanced by subscribing witnesses to a will under indictment, as an excuse for not testifying to the execution of the will, may properly be sustained.

Though non-resident executors, authorized by a will to serve without giving bonds, might remove the property of the estate from the State, the surrogate may require security of them. Held that there is no reason to believe that contestants' rights will not be protected.

An executor named as such and as residuary legatee in a later will, may contest an earlier will, unless he has lost the right by not doing so at the proper time. He has such right and is interested in the estate, though unable to prove the later will in the manner required by the statute to establish such will.

Only one failing to appear is in "default" within the meaning of Code Civil Procedure, section 2568, permitting appeals, except by one "in default."

A decision on appeal in prohibition proceedings is not to be construed as an approval of rulings in the inferior court on evidence, practice, procedure and discretion, such as are reviewable on direct appeal.

Where a court refuses to grant an absolute writ, upon return to an

People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

alternative writ of prohibition, a stay pending appeal from the final order refusing the absolute writ is unauthorized. (Decided June, 1902.)

Appeal by relator from a judgment of the Special Term of the Supreme Court entered in the Clerk's office of the County of New York on the 21st day of May, 1902, denying his application for a writ of prohibition absolute and quashing and dismissing the alternative writ.

The alternative writ shows that proceedings have been duly instituted and are pending undetermined in the Surrogate's Court of the County of New York for the probate of two alleged wills of William M. Rice, deceased, bearing date respectively on the 26th day of September, 1896, and 30th day of January, 1900; that the subscribing witnesses to the last will have been indicted for forgery and perjury concerning the same, and upon that ground have refused to testify with reference to the execution thereof, and that the surrogate has sustained their claim of privilege; that the relator is the proponent of the last will and that the Surrogate's Court, "without taking such and other evidence, is about to render a decree admitting to probate said will of 1896, and dismissing the proceedings for the probate of said will of 1900." The alternative writ required the respondent and the surrogate to show cause why they should not be absolutely enjoined and restrained from taking further proceedings with reference to the probate of either of said wills until after the trial of these indictments against the subscribing witnesses or until their evidence can be lawfully obtained. The returns raise no issues of fact, but challenge the sufficiency of the moving papers to warrant the granting of an absolute writ. The alternative writ was granted on the affidavits of the attorney for the relator, of the subscribing witnesses who have been indicted, and of one Scheflin and one Cantwell. The affidavit of the attorney shows, among other things, that the testator died on the 23d of September, 1900, leaving property worth more than $5,000,000; that

People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

three executors are named in each will, two being the same, John D. Bartine being the third in the first, and the relator being the third in the last; that the will of 1896 was filed on the 12th day of October, 1900, and the other on the 30th of November thereafter, and applications for their probate were duly made by Bartine and the relator respectively; that the first will left the bulk of the estate to the William M. Rice Institute for the Advancement of Literature, Science and Art, a corporation of the State of Texas; that in the second will this corporation was given a legacy of a quarter of a million and the bulk of the estate was left to the relator; that the relator and the heirs and next of kin of the testator filed objection to the probate of the first will, and Bartine and others filed objections to the probate of the second will; that the executors of the first will are all nonresidents, and it is provided that they shall not be required to give security; that as the result of criminal proceedings instituted against the relator for the murder of the testator and for the forgery in connection with the second will, he was indicted for such murder and forgery on the 25th day of April, 1901, and that contemporaneously therewith criminal proceedings were instituted against the subscribing witnesses to the last will for perjury in testifying concerning its execution in the criminal proceedings against the relator and for forgery in connection with it also; that the relator has been convicted of murder and an appeal from such conviction is pending in the Court of Appeals; that the indictments against the subscribing witnesses have not been brought to trial; that on the 22d day of June, 1901, before any evidence was taken, the surrogate adjourned these probate proceedings on account of the pendency of said criminal proceedings until November, 1901; that on the 23d of November last a settlement was made between heirs and next of kin and the said William M. Rice Institute by which their objections to the probate thereof were to be withdrawn and said institute should pay them

People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

about half a million dollars; that two days later the hearing on the probate of said wills came up and the subscribing witnesses to the first will were examined and the hearing adjourned until the 9th of December; but the making of the settlement was not disclosed, and the objections of the heirs and next of kin were not withdrawn until the 7th day of January, 1902; that no further proceedings were taken in the Surrogate's Court until the 16th day of April, 1902, after the trial and conviction of the relator; that on said last mentioned day the present attorney for the relator, who had only recently been retained, had been previously informed by the counsel, who therefore represented the relator on the probate proceedings, that a hearing would be forced at that time, applied for an adjournment on the ground of the pendency of the criminal proceedings against the relator; that the subscribing witnesses who had been indicted would claim their privilege and refuse to testify, and that he was not familiar with the various litigations and was not prepared to proceed; that the surrogate denied the motion, but stated that the right to cross-examine the subscribing witnesses to the first will, who had given the formal proof as to its execution, had been reserved to the relator; that the attorney for the relator, in applying for said adjournment, stated that he did not waive his right to cross-examine said witnesses; that he then called the subscribing witnesses who had been indicted and upon being sworn and interrogated concerning the execution of the will they refused to testify, upon the ground that their answers might tend to incriminate them, and the surrogate sustained their claim of privilege; that thereupon he contended that the surrogate had no power to proceed to a decree admitting either will to probate and asked leave to submit a brief on the question, whereupon the surrogate stated: "That would be a matter that would come up in the final argument when the whole case is in"; that thereafter, on six hearings, from April 16 to May 1, the counsel for the proponents of the first will called and

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