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

examined witnesses as to their opinion of the genuineness of the signature to the last will; that while cross-examining these witnesses he had handwriting experts in court whom he announced that he intended to call as witnesses in rebuttal later; that he asked that one of these witnesses be recalled or that his testimony be stricken out and on the 1st day of May announced that he would apply "in due course" for an order to take the deposition of the witness who had departed from the State; that on the last mentioned day counsel for the proponents of the first will moved, at the close of the examination of the last witness called by the proponents, for a decree admitting to probate the first will and dismissing the petition for the probate of the last will; that he objected to this motion and claimed the right to call witnesses in rebuttal, and stated that he expected "in due course of the proceedings" to introduce testimony under the objections filed by the relator to the first will, but that the surrogate announced that he was prepared to admit the first will to probate and dismiss the proceedings for the probate of the last will for a failure of proof on the part of the proponents of the factum of the will of 1900; that the counsel for the proponents offered to withdraw his motion if the witnesses would withdraw their privilege and testify, and in this the surrogate acquiesced; that after a protracted argument the surrogate consented to adjourn the proceedings until the 10th day of May, 1902, stating that if on the adjourned day the subscribing witnesses still claimed their privilege he would admit the first will to probate and deny the probate of the second will and decline to take further testimony, notwithstanding the fact that the relator's attorney asked the right to call witnesses who would testify to the genuineness of the signature to the last will and a witness who would testify that the testator informed him that he was going to and had made a new will; that he in good faith intends to contest the first will and to show the validity of the second will; that, in his opinion, the first will is void and the Rice

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

Institute cannot take under the laws of Texas; that if the first will is admitted to probate the property will be removed from the jurisdiction of the court, and that the relator will be without remedy and that the proposed action of the surrogate is in excess of jurisdiction.

The extract from the stenographer's minutes, quoted in the affidavit of the attorney for the relator, does not show that he informed the surrogate that he desired to introduce further evidence. These are the only material facts shown.

John C. Tomlinson, Francis L. Wellman, Wm. W. Gooch and Edgar J. Kohler, for relator-appellant.

Wm. B. Hornblower, John M. Bowers, James Byrne and Leo N. Levi, for respondents.

LAUGHLIN, J.-The writ of prohibition only lies where there is a want of jurisdiction, or where a court, judge or other tribunal is proceeding in excess of the jurisdiction conferred (Quimbo Appo v. People, 21 N. Y. 531; People ex rel. Jones v. Sherman, 66 App. Div. 231; People ex rel. Smith v. Doyle, 28 Misc. 411, 44 App. Div. 403, 162 N. Y. 659; Thomson v. Tracy et al., 60 N. Y. 31; People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Oakley v. Berry, as District Attorney, 32 Hun, 443; People ex rel. Sprague v. Fitzgerald, 15 App. Div. 559; Smith v. Whitney, 115 U. S. 167).

We find it stated by some judicial writers, following the old English cases, that the writ may also be issued to prohibit the court, judge or other tribunal from proceeding contrary to "the general law of the land." This doubtless means nothing more than passing upon personal or property rights without a hearing. It embraces cases where a petition, pleading or objection is duly served or filed in accordance with the settled law or practice, and a court, judge or other tribunal having jurisdiction and whose duty it is to hear and determine the matter is proceeding to a determination without a hearing (Hovey v. Elliott, 167 U. S. 409, aff'g 145

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

N. Y. 126). That, I take at, would be an excess of jurisdiction and I do not understand that the phrase "contrary to the general law of the land," as thus used by the courts, means anything more than an excess of jurisdiction. It is not the office of a writ of prohibition to regulate the admission or rejection of evidence or the proceedings before an inferior court, judge or other tribunal having jurisdiction of an action or proceeding. Where jurisdiction exists errors of law or procedure must be corrected by such appeal or other review as the law affords (People ex rel. Mayor v. Nichols, supra; People ex rel. Smith v. Doyle, supra; People ex rel. Oakley v. Berry as District Attorney, supra; People ex rel. Reynolds Card Mfg. Co. v. Fourth District Court, 13 Civ. Pro. Rep. 134).

If the relator's right to the absolute writ depends upon the sufficiency of the facts recited in the alternative writ, as is the case in mandamus proceedings, it scarcely needs any argument to show that those facts are insufficient. The alternative writ merely recites that the subscribing witnesses to the will of 1900 who have been indicted for perjury have to testify to the execution of that will and that the surrogate has sustained their claim of privilege and is about to dismiss the proceedings for the probate of that will and admit the other to probate. The surrogate and respondent were required to show cause against an absolute writ enjoining both probate proceedings until the testimony of these witnesses is obtained.

It is clear that the surrogate has jurisdiction. What adjournment, if any, should be granted rests in the sound discretion of the Surrogate's Court, subject only to review by direct appeal to the Appellate Division. There is no presumption of law that either will is valid, and neither can be admitted to probate without competent proof of its due execution (Matter of Cameron, 47 App. Div. 120, aff'd 166 N. Y. 610; Matter of Lasak, 131 N. Y. 624).

The relator is not entitled as matter of strict legal right

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

to have the probate proceedings adjourned until the disposition of either of the criminal prosecutions (Matter of Fleming, 5 App. Div. 190; Cook v. Ellis, 6 Hill 466; Quimby v. Blackie, 63 N. H. 67; Commonwealth v. Bliss, 1 Mass. 32; Adams v. Westcott, 61 How. Pr. 138). The verdict or judgment in the criminal cases would not be res adjudicata on any question in the probate proceedings. Nor is the relator, as a matter of strict legal right, entitled to have the probate proceedings adjourned indefinitely to enable him to obtain this testimony. The Surrogate's Court undoubtedly has power to postpone these probate proceedings until after the trial on the indictments against the witnesses; but if this discretion to adjourn or refuse the adjournment be erroneously exercised or abused, the remedy is by appeal, and not the resort to the writ of prohibition.

It is not shown in the alternative writ that the first will has not been duly proved. The Surrogate's Court has jurisdiction to determine whether it has given the relator, who is the proponent of the will of 1900, a reasonable opportunity to make proof of its due execution, and whether the proceedings should be dismissed or probate denied for failure of proof, or continued to afford him an opportunity to present further evidence. The dismissal or denial of probate for failure of proof will not be a dismissal upon the merits. It will merely dispose of the present proceedings and be a determination that no satisfactory proof that the alleged will of 1900 is the last will and testament of the testator has been presented.

It seems to be assumed by the counsel for the respondent, as well as the appellant, that the right to the absolute writ depends not on the recitals in the alternative writ, but on the affidavits upon which it was granted, and, without stopping to examine the question, that may be assumed for the purpose of this appeal.

We think the affidavits presented by the relator fail to show sufficient facts to entitle him to the absolute writ. It

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

thereby appears that the will of 1896 has been duly proved and that evidence has been given tending to show that the later will is a forgery. When the relator's present attorney first appeared in the probate proceedings the surrogate informed him that the right to cross-examine the subscribing witnesses to the first will had been reserved to the relator; but it does not appear that he asked to examine them then or on any of the subsequent adjourned hearings. Nor does it appear that the relator at any time offered any evidence with reference to the validity of either will or asked to have his witnesses examined. It does appear that he informed the court that he intended to produce evidence; but that is not sufficient to afford a basis for issuing an absolute writ of prohibition against the surrogate upon the theory that if the relator does in the future offer competent evidence it will be rejected, even though his right to introduce testimony has not been waived or lost. There is nothing to justify the inference that the learned surrogate had not acted judicially and with perfect fairness throughout the probate proceedings. His remarks indicate that he thinks it is about time that the hearings on these proceedings should be concluded, but the inference that the surrogate contemplates depriving the relator of any of his legal rights is not warranted. It may be that the surrogate entertains the belief that the relator is responsible for the refusal of the subscribing witnesses to testify. It appears that these witnesses have testified with reference to the execution of this will on the criminal proceedings instituted against the relator. The entire record of these proceedings and of the probate proceedings are not before us, and we cannot say that there is nothing to warrant such an inference. However this may be, the learned surrogate was right in sustaining the privilege claimed by the witnesses (People ex rel. Morse v. Nusbaum, 55 App. Div. 245; People ex rel. Toy v. Major, 71 Hun, 182; People ex rel. Taylor v. Forbes, 143 N. Y. 219). It is contended by the relator that inasmuch as the executors of the

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