In the Matter of the Probate of the Last Will and Testament of John Kane, Deceased

In the Matter of the Probate of the Last Will and Testament of John Kane, Deceased. [MAJORITY] Decree of the Surrogate’s Court of Richmond county, and order denying motion to resettle case on appeal, unanimously affirmed, with costs to respondent, payable by appellants. In our opinion the testimony taken pursuant to section 141 of the Surrogate’s Court Act was properly considered by the surrogate at the trial of the issues raised by the filing of objections. The surrogate presided at tioth examination and trial. All the persons appearing at the trial had previously appeared at the oral examination, where the witnesses were examined and cross-examined. At the trial the surrogate presided without a jury, so that he was the sole judge of the facts and of the evidence taken at the oral examination before him. Nothing was to be gained by repeating evidence with which every one concerned, including the surrogate, was familiar. (See Downey v. Downey, 16 Hun, 481.) Present — Kelly, P. J., Jaycox, Maiming, Kapper and Lazansky, JJ.