June Term, 1902.
John C. Tomlinson, for the appellant.
William B. Hornblower, for the respondents.
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, 20 N.Y. 531; People ex rel. Jones v. Sherman, 66 App. Div. 231; People ex rel. Smith v. Doyle, 28 Misc. Rep. 411; 44 App. Div. 403; 162 N.Y. 659; Thomson v. Tracy, 60 id. 31; People ex rel. Mayor v. Nichols, 79 id. 582; People ex rel. Oakley v. Petty, 32 Hun, 443; People ex rel. Sprague v. Fitzgerald, 15 App. Div. 539; Smith v. Whitney, 116 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 laws 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, affg. 145 N.Y. 126. ) That, I take it, would be an excess of jurisdiction, and I do not understand that the phrase "contrary to the general laws 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. Petty, supra; People ex rel. Reynolds Card Mfg. Co. v. Fourth Dist. Court, 13 Civ. Proc. 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 refused 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; affd., 166 N.Y. 610; Matter of Lasak, 131 id. 624.)
The relator is not entitled as matter of strict legal right 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. Blackey, 63 N.H. 77; Commonwealth v. Bliss, 1 Mass. 32; People ex rel. Adams v. Westbrook, 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 by 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 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 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 has 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. Nussbaum, 55 App. Div. 245; People ex rel. Toy v. Mayer, 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 will of 1896 are all non-residents, if that will is admitted to probate they may remove the property from the State before he is able to establish the validity of the will of 1900. This does not go to the jurisdiction of the surrogate. Moreover, notwithstanding the fact that the will relieves the executors from giving a bond, the surrogate is authorized on account of their non-residence to require security to be given, and there is no reason to apprehend that the rights of the relator will not be properly protected. (Code Civ. Proc. §§ 2636, 2637, 2638; Estate of Demarest, 1 Civ. Proc. Rep. 302.)
If the relator has not lost his rights by failing to introduce his evidence on the objections filed to the probate of the will of 1896, and on his petition for the probate of the will of 1900 at the proper time, he will doubtless be afforded an opportunity to do so. Counsel for the relator is doubtless right in his contention that the relator is entitled on account of his claim as executor of the will of 1900 and as devisee thereunder to contest the validity of the will of 1896 unless he has lost his rights by not doing so at the proper time. (Code Civ. Proc. § 2617.) While he may be unable to establish the validity of the will of 1900 in the manner required by the statute to authorize its probate, it by no means follows that he is not interested in the estate. He may be able to establish the validity of the will by common-law proof which would be accepted in an action in the Supreme Court concerning the ownership of the realty of the testator at least. ( Upton v. Bernstein, 76 Hun, 516, 520; Matter of Keleman, 126 N.Y. 79.) It does not follow, therefore, that because he is unable to have the will of 1900 admitted to probate he is not interested in the estate. But there is no evidence that the surrogate has ruled that the relator is not entitled to contest the first will.
We are asked to construe a remark of the learned surrogate that the proponents of the will of 1896 were entitled to a decree admitting it to probate by default as indicating an intention on his part to enter a decree that will recite that the relator has defaulted and thereby preclude him from appealing. The relator has appeared in the proceeding and will be entitled to appeal from any decree that may be entered. Section 2568 of the Code of Civil Procedure relates only to a default in appearing. The learned surrogate evidently meant by default the failure of the relator to produce evidence at the proper time, and the inference is not justified that he contemplates entering a decree reciting that it was made on the relator's default.
It is suggested by counsel for relator that, if the writ be refused, it will be taken as an indication that, in the opinion of this court, the surrogate may properly dismiss the proceedings for the probate of the will of 1900 and admit to probate the will of 1896. That would be an unwarranted inference. We refrain from expressing any opinion on questions of evidence, practice, procedure and discretion until they are properly before us by appeal. We merely hold that the surrogate has jurisdiction and is not proceeding in excess of his jurisdiction in a manner to justify issuing an absolute writ of prohibition.
The alternative writ was, therefore, properly quashed and dismissed and an absolute writ properly denied. The order should be affirmed, with fifty dollars costs and disbursements, and the surrogate and respondent are authorized to proceed in the matter of probating said wills as if the alternative writ had not been issued.
PATTERSON, INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
I fully concur in the opinion of Mr. Justice LAUGHLIN and simply wish to add that, in my opinion, the provision in the order appealed from that the stay of proceedings contained in the alternative writ of prohibition be continued pending an appeal to the Appellate Division of this court from the final order in this proceeding is entirely unauthorized. A writ of prohibition prohibits a court from proceeding in a matter then before it. The only authority that the Supreme Court has to restrain a court from so proceeding is by a writ of prohibition. The court below granted an alternative writ, but, upon a return being filed, it refused to grant an absolute writ. The order refusing the absolute writ was a final order under section 2100 of the Code of Civil Procedure, which provides that "where a final order is made against the relator it must authorize the court or judge and the adverse party to proceed in the action, special proceeding or matter as if the alternative writ had not been issued." Neither the Code nor the practice authorizes the Special Term, when a final order refusing an absolute writ is entered, to prohibit a court from proceeding by order, either pending an appeal from the order refusing the absolute writ or for any other period of time. The Special Term was required by the provisions of the Code applicable to a writ of prohibition, upon the return being filed, to determine whether or not an absolute writ of prohibition should issue. Upon its determination that such an absolute writ should not issue, the final order abrogates the alternative writ, and the prohibition contained in that writ is at an end. The Supreme Court was then without jurisdiction to continue the prohibition contained in the alternative writ by order.
I think it necessary to make this statement to avoid the implication that the practice adopted by the Special Term is in any sense approved.
PATTERSON, McLAUGHLIN, HATCH and LAUGHLIN, JJ., concurred.
Order affirmed, with fifty dollars costs and disbursements.