In the Matter of the Probate of the Will of CLARENCE A. BARNES, Deceased. ALICE KEISINGER et al., Appellants; JOSEPH DE SANTO et al., as Executors of CLARENCE A. BARNES, Deceased, Respondents.
APPEAL from an order of the Surrogate's Court of Wayne County (BRASSER, S.), entered April 13, 1954, which denied a motion to set aside the verdict of a jury admitting the will of Clarence A. Barnes, deceased, to probate, and for a new trial.
Philip L. Zenner for appellants.
John W. Miles and John C. Carmer, Jr., for respondents.
MCCURN, P. J.
Objections were filed to the probate of the will of the testator and thereafter a jury trial was had before the Surrogate on framed questions as to testamentary capacity and undue influence. The jury answered the questions in favor of the proponents and thereafter a decree admitting the will to probate was entered in the Surrogate's Court. The order appealed from denies a motion in Surrogate's Court on behalf of the contestants to vacate the decree of probate, and to set aside the jury's verdict and grant a new trial. No motion was made upon the Judge's minutes or upon a case to set aside the verdict of the jury.
The order now under review was based upon the petition of one of the contestants, two affidavits made by counsel for the contestants and a transcript of the court's recharge to the jury pursuant to the jury's request for further instructions on the question relating to undue influence.
Respondents noticed a motion returnable in this court on the day of the argument of the appeal to dismiss the appeal. Dismissal was sought upon the ground that the appeal involves questions of fact requiring a review of the trial before the Surrogate; that the record of the trial was not a part of the motion papers before the Surrogate and is not contained in this record on appeal. Counsel for appellants submitted in opposition to that motion his own affidavit sworn to the 28th day of September, 1954, in which he sets forth that appellants do not seek a reversal 'on the contention that the verdict and the decree are against the weight of evidence' but that the purpose of the appeal is 'to secure a new trial, based on the Court's instructions to the jury, after it had retired, in the absence of the contestant's attorney and the context of said charge.' Appellants' counsel further stipulated in open court that notwithstanding the contents of his brief, the appeal be considered solely upon the alleged erroneous proceedings of the trial court whereby in response to a request from the jury during its deliberations it further instructed the jury on the law pertaining to undue influence in the absence of counsel for the contestants. The appeal as so limited involves questions of law which we think may be determined upon this record. We therefore deny respondents' motion to dismiss the appeal.
It appears from the record that the case was submitted to the jury at about two-thirty in the afternoon of February 8, 1954; that during the afternoon the jury sent word to the court that it desired instructions and after being brought into the courtroom the following took place: 'Q. Do we have to answer all questions? A. By the Court--yes. If there aren't any more questions, you may retire, again, to the Jury Room.' It appears that sometime during the evening the jury sought further instructions and upon being brought into court asked the following question: 'Q. Will the Court please recharge the Jury as to question 5 which reads, 'Was the execution of said paper caused or procured by the duress or influence of any person or persons?"' The court thereupon reinstructed the jury on the law of duress and undue influence pertaining to the making of a will.
Counsel for the proponents of the will was present in the courtroom when such additional instructions were given to the jury, but counsel for the contestants was not present. The appellants now contend that the additional instructions so given were erroneous and pre-judicial and in any event the mere fact that such instructions were given in the absence of counsel for the contestants constitutes reversible error requiring a new trial.
We have carefully examined the transcript of the instructions given in response to the jury's inquiry. The particular portion claimed by appellants to be erroneous and pre-judicial reads as follows: 'Now, let me caution you again, that the amount of participation in the making of the will which I have just described to you, in and of itself may not point to undue influence. You must still find that there was evidence of pressure and influence, in order to hold that the will is not that of the testator, Mr. Barnes. Now, there is nothing wrong in saying once or twice to a person how he should make a will. It may be your duty and favor to him, but if you keep going until the pressure gets so great that he would do anything to stop it; then you have such force as to a fraud and influence on him.' We have not before us the main charge or the record of the trial but upon the record presented there is no showing of prejudice or error. (See Smith v. Keller, 205 N.Y. 39, 44.)
The remaining question is whether or not it was in any event error to so instruct the jury in the absence of counsel for the contestants. It appears from the affidavit of appellants' counsel 'that after the case was submitted to the jury, your deponent informed the Court that he desired to ...