Kate B. Howland, Appellant, v. Laura S. Taylor et al., Respondents

Kate B. Howland, Appellant, v. Laura S. Taylor et al., Respondents. The provisions of the Code, in reference to appeals, do not affect appeals from Surrogate’s Court (Code, § 471). They are still governed by the provisions of the Revised Statutes, save as affected by the changes in the organization of the judiciary made by subsequent constitutional amendments, and by the provisions of the judiciary acts (chap. 281, Laws o 1847; chap. 203, Laws of 1871) consequent thereon; and upon appeal from a judgment affirming the decree of a surrogate admitting a will to probate, this court may review questions of fact. (Argued January 22, 1873; decided June 10, 1873.) It is for the proponents to make satisfactory and convincing proof of the factum of an alleged will; and if the proof comes short of conviction, the paper offered may not be admitted to probate; and if, by the testimony, the matter is left in that state of doubt and uncertainty that the mind of the court is not brought to the belief of the actual execution by the decedent,.and yet is not convinced to the contrary, this court will reverse a decree admitting it to probate, and will send the case to a juryior investigation. This was an appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a decree of the surrogate of the county of New York, admitting to probate an instrument purporting to be the last will and testament of James ,B. Taylor, deceased. The probate was contested upon the ground that the proposed instrument was a forgery. The court holding, as above stated, upon the right to review the facts here, and the nature of proof required to sustain an alleged will. Held, that while the facts appearing were not sufficient to satisfy them that the will was a forgery, yet they were not sufficient to convince them of its genuineness, leaving the matter in doubt and uncertainty, and therefore that it should be sent to a jury for investigation. Henry S. Clinton & Samuel Hand for the appellant. Rufus F. Andrews, Francis Kernan & E. W. Stoughton for the respondents. [MAJORITY — Folger, J.,] Folger, J., reads for reversal of judgment of General 'Term of the decree of surrogate, and ordering an issue to be tried by a jury at a Circuit Court in New York. All concur. Peckham, J., in result. Judgment reversed, and ordered accordingly.