The President:

Next on our program is the paper by John P. Cohalan and Robert Ludlow Fowler on the "Practice in Surrogates' Court."

The following paper was presented by Hon. Robert Ludlow Fowler, of New York:

PRACTICE IN SURROGATE'S COURT

As the official representatives of the most frequented Probate Court in this State, we are invited by your Association to give expression to our opinion upon the proposals for the "Simplification of Procedure in the Courts of this State," in so far as such proposed simplification will affect the jurisdiction committed to us. If we understand aright the proposals under consideration by your Association, they relate to a reform of the existing Code of Civil Procedure. We, therefore, in reply to your invitation, shall confine our observations at this time to those features of the proposed undertaking which most directly affect the jurisdiction of the Courts of the Surrogates.

Some sort of jurisdiction over last wills and testaments and estates of intestates has for upwards of two hundred years been committed by the proper sovereign authorities of New York to officials styled "Surrogates." In all that long period the procedure and practice before the Surrogates and in the Courts of the Surrogates have undergone less change than have the practice and procedure in the other Courts of New York. The Revised Statutes embodied the first legislative attempt of a systematic kind to regulate the jurisdiction of the Probate Courts of the State. It was not without reference to the former course of procedure and practice in testamentary and intestate causes. Such procedure and practice, in consequence of

their origin and early history, were then characterized by few of the anomalies and technicalities peculiar to the procedure and practice in the common law Courts of New York. Consequently they were not in need of such extensive reforms as were contained in the Codes of Practice enacted after the adoption of the State Constitution of 1846.

The Codes of 1848 and 1849, as amended, until the year 1880 had no precise reference to the practice and the proceedings in the Probate Courts of this State, and it was reserved for Part II of the present Code of Civil Procedure, enacted by Chapter 178 of the Laws of 1880, to translate, supplement and amend the provisions of the Revised Statutes relating to Surrogate's Courts and proceedings therein. Such redaction and changes as were thus made in the Revised Statutes are now contained in Chapter XVIII of the present Code of Civil Procedure.

By reference to Chapter XVIII of the Code of Civil Procedure it will be perceived that in the Courts of the Surrogates the ancient citation and mandate, the petition and the written answers thereto, are preserved as process and pleadings, and, it seems to us, with good reason, for such pleadings already embodied all that was best in the reforms intended by the Code of Civil Procedure. Such a retention has a profound meaning when fully understood. It would be too long to consider at large the scheme on which the practice Codes of this State were in fact formulated. It will suffice to point out that it had extensive reference to the former rules prevailing in Courts of Equity, which in turn had the same original as the procedure and the pleadings recognized in Probate Courts.

That the various revisers of the Statutes of this State were wise in distinguishing the practice and

procedure in the Courts of the Surrogates from the practice and procedure in the other Courts of the State, is, we think, susceptible of exact demonstration, were demonstration required. That the people of the State were also wise in segregating the Probate Courts of first instance from the other Courts of the State is apparent if we have reference to the history and development of jurisdictions in New York. In the course of two centuries generations of our citizens have become very familiar with the Courts charged primarily with the regulation of testate and intestate successions in New York. It is not too much to affirm that the organization and the administration of such Courts has been, on the whole, most satisfactory to the people at large. The Surrogates, as fits their origin and peculiar jurisdiction, have become a special class of public functionaries, well known to the inhabitants of the various counties of New York. The Surrogates themselves are generally chosen with some reference to their qualification for the jurisdiction exercised in Probate Courts. In a conservative and prosperous State to depart without imperative necessity from such an ancient and satisfactory probate system as that indicated, would, we submit, be a dangerous type of legislation, and one which might tend to destroy an institution that, from its relative antiquity, adds no little to the conservative forces of this great and historic State. Persistence in established institutions, if good in themselves, is always the characteristic of a highly civilized political or social organization. A changeful State is not superior in quality or degree to an inconstant or unreflecting citizen.

The fact that in England the contentious business of the old Courts of Probate has of late years been transferred

to the Probate, Divorce and Admiralty Division of the High Court of Justice, is of no weight here, as the noncontentious and administrative business of the Ecclesiastical Courts is still preserved by independent probate and district registries, thus requiring separate sets of officials. Besides, in New York the Surrogates are charged with various functions over the public records which have no parallel in England. These and the administrative functions of the Surrogates of New York could not now be transferred to the Supreme Court of the State without great confusion, certainly at first, while in the end both jurisdictions would, perhaps, suffer from such an unnecessary fusion.

In the last half century of our political history the old jurisdiction of the Surrogates has been much enlarged by the addition of a jurisdiction over classes of rights and remedies relative to successions formerly cognizable exclusively, under our jurisprudence, in the Courts of Common Law or Equity. Up to a certain point this transfer of jurisdiction to the Surrogates has been found to conduce to the ease and welfare of the public.

If the Courts of the Surrogates of this State as now established are to continue, it will be necessary for the Legislature, in any re-enactment or revision of the Code of Civil Procedure, to have special and exact reference to the requirements of the tribunals administered by the Surrogates. Without any attempt at a partial solution of the problem indicated, and without reference to particular provisions of the Code affecting practice and procedure in Surrogate's Courts, we venture to suggest to future revisers, as a working principle, that Chapter XVIII of the present Code of Civil Procedure should be taken out of the general Code of Practice in Courts of Record and reenacted separately, with some few desirable amendments,

as a particular Code for the Surrogates' Courts of the State. In such a Surrogate's Code all cross-references to the general Code of practice and procedure in the other Courts of Record should be avoided, in order that the Code for the Surrogates' Courts may be complete in itself. The present cross-references in Chapter XVIII to sections of other chapters of the existing Code are now, when harmonious, both confusing and troublesome to practitioners in the Courts of the Surrogates.

If the suggestion of a separate Code for the Surrogates' Courts shall be adopted by the revisers, any further additions to its content should, we submit, if relating to practice or procedure, be regulated by rules of Court made by the Surrogates themselves, acting either separately as a Court of the County, or collectively as a Surrogate's bench. The special rules for particular counties should have the consent of the Justices of the appropriate Appellate Division of the Supreme Court, which now in each county corresponds with the former Ordinary to the former Surrogates. In any constructive legislation affecting the Surrogates, reference to this relation should not be lost sight of by the revisers, for on the continuance of such relation the public welfare may depend. That each of the Surrogates in all the counties should possess the initiative to formulate special rules for the particular county (with the consent of the appropriate Appellate Division) will be apparent if we consider the separate and local requirements of the different counties. In some of the rural counties the contentious business of the Surrogates' Courts is small in volume and rarely great in amount, whereas, in the county of New York the contentious business of the Surrogates' Court in volume and amount is as great as that of any other Probate Court in the world, while our present jurisdiction.