testament," and partially obscuring the words "I hereby appoint my said wife Anna Barbara Bennett." He then asked Mr. Bennett to sign the paper, and said to the other subscribing witness, "Mrs. Nelle, will you sign this as a witness with me to Frank's signature?" Mrs. Nelle thereupon signed it "in both places," and then Schinzel signed it. The matter of Mrs. Bennett's will was then taken up. Schinzel laid the paper down on the table, and said to Mrs. Nelle, "Mrs. Bennett wants you and I to witness her signature." Schinzel admits that this was an unusual circumstance, and that ordinarily he would ask the witness whether or not he wanted to sign as a witness to the will. Schinzel was very familiar with the drawing of wills; he says that he had drawn 300 or 400 before the transaction of May 3, 1919. He testified that he deliberately and intentionally left out any question that would have either Mr. Bennett or Mrs. Bennett declare that the papers signed by them were their last wills. Schinzel further testified that Mr. Bennett said he intended to make a will appointing Jake as an executor, that he was anxious to do that, and that he would be in in a couple of days to do it-very soon.

Upon the former trial the same witness testified that Mr. Bennett said, "I will sign this now to humor her, but I will draw another will appointing Jake executor." He testified to this more than once, but later corrected his testimony, so as to have Mr. Bennett say that he would draw a will appointing Jake executor. Nothing at all was said about Mrs. Bennett coming to Schinzel's office to make another will, but, according to Schinzel, he also aborted her will by omitting to have it declared as her will. Each of the wills has a full attestation clause, which certifies that the instrument "was declared by the said testator [testatrix] to be his [her] last will and testament, and each of us, at the request of said testator [testatrix], and in his [her] presence andin the presence of each other, signed our names as witnesses thereto." Schinzel, who was fully familiar with attestation clauses, signed this certificate that Mr. Bennett had declared the instrument to be his last will and testament, and he says he allowed Mrs. Nelle to sign it also. Schinzel was the attorney for Mrs. Bennett, as well as for Mr. Bennett, in the transactions that day. Mrs. Bennett asked his advice as to the making of her will. In the course of the conversation she said she had just gone through bankruptcy, and wanted to know whether that would interfere with her making a will of the character proposed. Schinzel informed her that it would not, so long as she had been discharged from bankruptcy. When the papers were executed, Mrs. Bennett's will at least was put into an envelope and indorsed, "Last Will and Testament of Anna Barbara Bennett." Schinzel thinks he put the other will in a paper and indorsed it; but, on objection that the envelope was the best evidence, he was not allowed to say what the indorsement actually was. Schinzel admits that he knew that the attestation clause was untrue when he signed it, that he never thereafter told Mr. Bennett he had made that untrue statement, that this was so as to Mrs. Bennett's will also, and he never told her it was untrue. It was finally admitted by him that he met Mr. Bennett 10 or 15 times after the making of the will-sometimes in his (Schinzel's) office, sometimes at the Bennett home, once or twice in court, and once

(202 N.Y.S.)

on a trip to Staten Island. He says that Mrs. Bennett was always present on those occasions. Despite these frequent meetings, neither Schinzel nor the decedent ever spoke of a proposed will naming Bennett's brother Jake as executor. Schinzel never said anything to Bennett about the will, or as to his having aborted the will, although he had been Bennett's intimate friend and his lawyer for 20 years. He admitted that he knew Bennett could make a will every day for the rest of his life. He knew that if the will was probated it would give the estate to Bennett's widow. Schinzel further testified as follows:

"Q. Did you therefore realize there was no occasion to make this will no will at all, simply because he wanted to make an additional executor? * * A. I did not have hardly time enough to think out

"Q. You knew it, didn't you? A. I knew he could do it; yes.

"Q. You knew, then, there was no occasion for making this will bad because of the mere fact that he wanted to have another executor? A. I did not think about that phase of it.

"Q. But you knew that was so?

"Mr. O'Neill: Objected to, because it don't make any difference that a man may know a thing upon reflection. The question is whether he thought about it, and decided there were other conditions. This man appeared to be under control of the woman altogether.

"Mr. Ketcham: Objected to; that statement.

"The Surrogate: Objection overruled.

"Mr. Ketcham: I ask your honor to instruct the jury that there is no evidence he was under the control of his wife.

"The Surrogate: I will so direct.

"Mr. O'Neill: We except.

"Q. You may answer. A. I did not think of it at the time."

The examination was continued:

"Q. You knew it in your soul, didn't you? That there was not any occasion, just because he wanted to make a new executor, that you should abort his will leaving his property to his beloved wife? A. I knew that, but, had I given reflection at the time, I might have done differently."

He said that as a lawyer he knew it, but that he did not think of it. "Q. Did you understand at that time that there was no occasion to make that will a bad one in the mere fact that he wanted to change his executor? A. I decline to answer the question, Judge.

"Q. On what ground? A. On the ground it may tend to incriminate me,"

After the death of Mr. Bennett, which occurred on November 30, 1920 (the will having been dated May 3, 1919), Schinzel called at the home of the Bennetts, before the funeral. He took away with him the paper offered as the last will and testament of Frank Bennett. Mrs. Bennett gave it to him. There is no suggestion in the record that at that time he intimated to Mrs. Bennett that the will was invalid, because he had purposely caused a defective execution of the same. On the contrary, he told her that he would offer it for probate. He took the will to his office and made copies of it, preparatory to filing it. He says that he told Mrs. Bennett he would offer it for probate. The petition for probate was drawn on a typewritten form. It contained words written by Schinzel, and he passed upon it when it was finished. He became attorney of record for Mrs. Bennett as proponent, and he'procured a verification of the petition by Mrs. Bennett, in which she was allowed to swear that she was the executrix named in the will of Frank Bennett, deceased, that it was a will, and that it was signed by

Schinzel and Mrs. Nelle as witnesses. The petition was verified December 6, 1920, one week after Bennett's death. Schinzel says that he intended to have the will admitted to probate, providing there were no objections filed to it.

Before it could be admitted to probate, even in default of objections, Mr. Schinzel would have been compelled to sign and swear to a deposition stating that Bennett had declared the paper to be his last will and testament. He had Mrs. Bennett sign and verify an oath of office as executrix. This was filed in the proceeding, and there was also filed a designation of the clerk of the Surrogate's Court as the person upon whom service was to be made on behalf of the executrix. This concededly was done on behalf of Mr. Schinzel as attorney in the case. Schinzel then told Mrs. Bennett that he thought he could get waivers of the issuance of citation. He told his clerk, a man named Corr, that he wanted to get waivers, if possible. At that time, when he was trying to get the waivers, he intended to prove the will, if there were no objections. He tried to get them before the petition for probate was filed, and he tried for a week or 10 days thereafter. He says he directed his clerk, Corr, not to file the petition for probate for a little while. The petition was filed, however, and the citation issued, and Schinzel appeared in court. Objections were filed two days before the return day.

Thereafter Schinzel said he could not act as attorney any longer, and Mr. Jetmore became attorney for the proponent. Schinzel recalls that he had testified that he told Mr. Jetmore he did not know what any of the objections could be based upon. He said it was possible that he told Mr. Jetmore he did not know of any objections, but he had no recollection of having said so in those words. Thereafter appears the following:

"Didn't you tell him you did not know what any of these objections could be based on [referring to the objections filed]? * * * A. I think I testified I may possibly have done so.

"Q. Didn't you testify to-day you told him that? A. Yes, sir."

He says he thinks he told Mr. Jetmore, the second time he saw him at his office, that the will was not published. That, he thinks, was some time in January. He did not tell Jetmore of the lack of publication before that, though he knew of it all the time.

"Q. Did he [Jetmore] then ask you whether you and Mrs. Nelle had signed the depositions? A. Yes; I think he did ask me whether I had signed the depositions.

"Q. Did you then say you did not know whether you had or not? A. I think I so told him."

At seven separate places in the record Mr. Schinzel refused to testify on the ground that his answer might tend to incriminate him; the transactions about which he was then being examined having no relation to the making of this will. On six occasions he refused to testify on the ground that his answer might tend to incriminate him with respect to matters which were immediately relevant to the transactions; three times with regard to what he said on the former trial, and three times with regard to the disclosure of professional confidences.

As against Schinzel's testimony, the other subscribing witness, Mrs. Nelle, testified that the paper offered for probate was signed by Ben

(202 N.Y.S.)

nett in her presence. She testified that Bennett was reading the will, and he said, "All right, George." And that Mr. Schinzel said, "All right, Frank?" and Bennett said, "Yes." Schinzel then said, "Do you acknowledge this as your last will and testament?" and Bennett said "Yes." "Q. At the last trial, when you swore he had $6,500 in the bank, and he gave it to you in trust for your daughter, you knew that that was not true at all, didn't you? A. Yes."

* * *

This testimony about the $6,500 was apparently given by Mrs. Nelle to offset the claim that her daughter, having recently gone through bankruptcy, had nothing at all to dispose of by will.

Mr. Jetmore testified that he first met Schinzel on December 20, 1920, and that he asked Schinzel what the contest in the case could be based on. "Q. Did he then say, in reply to that, that everything was regular about the execution of the will? * * A. He did."

He further testified that in substance Schinzel said he had no idea what the contest could be based upon; that the wills were drawn by him in accordance with the direction of the parties; that each of the parties read his or her will and said it was all right; and that each of them declared the same to be his or her last will and testament in the presence of the witnesses, who signed at their request.

"Q. Did he at that time say that he was very careful of this will, and that, while he may have overlooked some formality in other wills, these wills were strictly in accordance with the requirements of the law, or words to that effect? # * A. Yes, sir.

“Q. Did you at that time and place ask him whether or not he and Mrs. Nelle had signed the deposition? A. Yes, sir; in substance.

"Q. Did he at that time and place, in reply thereto, say that he did not know, but that he was going by the Surrogate's Court, and would find out and let me [you] know, and that, if he had not made the deposition, he would do so? A. Yes, sir."

It appears, also, by Schinzel's own testimony, supplemented by that of Mr. Jetmore, that Schinzel told Jetmore he had learned that the contestants had sent for some of his clients and were prepared to attack his character, if he should be a witness for the proponent; that Jetmore said, "Is there any truth in these things?" and that Schinzel replied in effect that there was just enough truth in them to make them appear bad. Schinzel had also acted as lawyer for the brothers and sisters of Mr. Bennett at different times for the last 10 or 15 years. Schinzel had professional relations with every one of the contestants after the making of the will and during the remainder of Mr. Bennett's life, and since the death of Mr. Bennett he had acted as counsel for four of the heirs at law.

From the statement of facts above given, it satisfactorily appears that the surrogate did not abuse the discretion vested in him by granting the motion to set aside the verdict. A point urged by the appellant is that the surrogate had no power to direct a verdict under section 457-a of the Civil Practice Act, as added by Laws 1921, c. 372, because that section is unconstitutional. The learned surrogate in his opinion says:

"Section 457a of the Civil Practice Act provides that 'a judge may direct a verdict when he would set aside a contrary verdict as against the weight of evidence.' It was earnestly argued by counsel for the contestants that

this provision is unconstitutional, but inasmuch as the question thus presented will no doubt be argued in the Appellate Division, the surrogate presiding thinks a court of first instance will assume the validity of the legislation. It was for the purpose of obtaining a jury's verdict that might be reinstated upon the appeal, if the trial court erred in directing the verdict, and thus avoid the necessity of a retrial, that the surrogate submitted the question as to due execution to the jury."

Section 457-a of the Civil Practice Act refers to Surrogates' Courts as well as to the Supreme Court. The first section of the Civil Practice Act provides:

"This act shall be known as the Civil Practice Act, and, except as otherwise expressly provided, shall apply to the civil practice in all the courts of record of the state."

In section 62 of the Civil Practice Act it is provided that the courts referred to in the act are enumerated in sections 2 and 3 of the Judiciary Law, and section 2 of the Judiciary Law, enumerating the courts of record of the state, includes within it the Surrogates' Courts.

The Surrogate's Court Act (Laws 1920, c. 928, as amended) was enacted on the same day with the Civil Practice Act (Laws 1920, c. 925, as amended), and section 316 of the Surrogate's Court Act as amended by Laws 1922, c. 653) provides:

"Except where a contrary intent is expressed in, or plainly implied from the context of this act, a provision of law or of rules, applicable to practice or procedure in the Supreme Court, applies to Surrogates' Courts and to the proceedings therein, so far as they can be applied to the substance and subject-matter of a proceeding without regard to its form."

It is argued by the contestants that this statute offends article 1, section 2, of the Constitution, which provides:

"The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever."

This was a re-enactment of similar provisions in prior Constitutions. The last Constitution was amended and revised generally in 1894, and went into effect on January 1, 1895. Prior to January 1, 1895, litigants could always question the validity of a will disposing of real property by commencing an action in ejectment, or the heirs at law could maintain an action at law under section 1537 of the Code of Civil ProcePursuant to sections 2647 to 2653, inclusive, of the Code of Civil Procedure, persons interested in the estate of the decedent could also, within one year after probate, apply by petition to the surrogate for a decree revoking the probate of the will, and thereby question the validity of the will. See Laws 1880, c. 178; Laws 1881, c. 535. Section 1016 of the Civil Practice Act (re-enacting Code Civ. Proc. 1537) now provides that heirs at law may bring an action for the partition of the real property of the decedent, alleging that the devise in the will is void. Prior to 1892 the decree of the surrogate was conclusive as to personal property disposed of by will, and was practically presumptive evidence only of the validity of the disposition of the testator's real property. See Code Civ. Proc. (Laws 1880, c. 178) §§ 2626, 2627, as respectively amended by Laws 1882, c. 399, and Laws 1881, c. 535. By chapter 591 of the Laws of 1892 the Legisla