In Re the Probate of the Will of Bull

Peckham, J. The question which first arises upon this appeal is as to the extent of our jurisdiction, whether we can review the facts to the same extent as the General Term of the Common Pleas, or whether we are restricted to the review of questions of law only. If this were the ordinary case of an appeal from the General Term affirming a decision of the surrogate admitting or refusing to admit to probate the instrument propounded as a will, the case of Hewlett v. Elmer (103 N. Y. 156), would be a direct authority restricting our jurisdiction to a review of questions of law only. It is contended however, that by the amendment made in 1886 to section 2547 of the Code, our jurisdiction is enlarged in the case provided for in that section; and that it is within our power, and con *630 sequently it is our duty, to review the questions of fact for the purpose of determining whether the verdict of the jury upon the trial therein provided for was against the weight of evidence, and if so, to grant a new trial, upon that ground. We do not think the amendment has that effect. It refers to cases arising in the county of Hew York only, and even' then it affects none but those which the surrogate of that county may choose to transfer to the Court of Common Pleas for the purpose of having a trial by jury in that court, of a special proceeding for the probate of a will pending before the surrogate. It would require the plainest language to convince us that the legislature meant to enlarge our jurisdiction in certain classes of probate cases coming to this court upon appeal from one county alone in the state while in all the other counties it remained as 'already and differently provided for by the Code of Civil Procedure. There is certainly no reason in the nature of the case why we should examine questions of fact determined by a jury of the Hew York Common Pleas in a special proceeding relating to the probate of a will, more than in any other proceeding or action. The reasoning which led to the decision in Hewlett v. Elmer (supra) leads also to a denial of any such right on our part in the case under consideration. Full effect can be given to the. language of the statute (§ 2547), by holding that the right to grant a new trial, because the verdict was against the weight of evidence, is confined to the Court of Common Pleas, and that the prohibition of section 1337 of the Code confines our right of review in the cases arising under section 2547, as in others, to questions of law only. The provision in the last above cited section that “ theappeal shall be heard upon a case containing all the evidence ” is manifestly for the purpose of allowing the court the benefit of a full record of the evidence taken, in order to be able to carry out the further provision that an error in the admission or exclusion of evidence, etc., may be disregarded if substantial justice does not require that there should be a new trial. We are satisfied that we have no power to review the facts in this case, further than, as is said in Hewlett v. *631 Elmer, to determine whether there is any evidence upon which the verdict of the jury might fairly and reasonably stand. Guided and limited by this rule, we have carefully examined the whole of the record in this case and we are of the opinion that there was an abundance of evidence to sustain the verdict ' of the jury declaring that the deceased at the time of the execution of the paper propounded as bis last will was not of sound mind, memory and understanding, and was incompetent to make a will. It would serve no useful purpose to herein enumerate the various facts which the evidence on the part of the contestants tended to prove, and which also legitimately tended to prove that the deceased at the time of the execution of the paper was non compos mentis. The rule as to what constitutes a sound and disposing mind and memory is in this state quite well settled, and each case must depend largely upon its own facts for the determination of that question. * * * * * * * The order should be affirmed with costs. All concur. Order affirmed. Footnotes [*] The omitted portion of the opinion relates to exceptions taken on the trial, not considered of sufficient general interest to require a report in full.