In re the Probate of the Last Will & Testament of Chauncey

The legislature seems to have considered that in disposing of such controversies as are adjudicated in the Surrogate’s Court, that the magistrate should be allowed, in the preparations of his findings, the benefit of such deliberation as may occur between the time of his decision and the final settlement, of the case upon appeal. ( Code, § 2545.) There is no reason why a judge of the Supreme Court in deciding similar controversies should be denied the same power.

The Code provides (sec. 2486), that the Supreme Court at Special Term performing the surrogate’s duties, shall possess all his powers. Nor does section 2490 of the Code, which provides that “ the special proceeding must be entitled in that court (i. e., Supreme Court) and the papers therein must be filed or recorded -as the case may be, and *431issues thereon must be tried as in an action brought in that court,” prevent the judge from exercising the power which a surrogate could exercise in such case, for the reason that the submission of findings is not necessarily a ■ part of the trial. A trial is the examination before á competent tribunal, according to the laws of the land, of the facts put in issue for the purpose of determinihg such issue. The trial ends when the-case is submitted for determination. (Mygatt y. Willcox, 35 How., 410.) But under section 1023. of the Code, it will be observed that the proposed findings may be submitted, after the case is submitted for decision, within such time as the court or referee may allow. Hence, submission of findings is not necessarily a part of the trial, and is not covered or controlled by the words in section 2494, “ must bfe tried as in an action brought in that court,” because these words refer only to the trial.

Aside, however, from any question arising upon a construction of the Code, we think the order should be affirmed upon the ground that in legal contemplation the requests were submitted prior to the decision, and that the appellant is estopped from asserting that they were not so submitted.

It appears that on the 8th of October, 1883, before a final decision of the case, the" parties met before the judge, when the respondent stated that he desired to submit requests to find, and requested time to do so. The justice then stated in the presence of the appellant, that requests might be handed in, and he would pass upon them as of the date of signing the decree. The decree was signed with that understanding. This was binding upon the appellants. They cannot be* heard now to object when it appears that they acquiesced in the arrangement made, by which the contestants were to consent to the signing of the decree, and thereby have the right' to send in requests to find afterwards, and to have them passed upon as of that date. The Rule No. 32, as to time of submitting requests to find, can undoubtedly be waived by consent of parties and the approval of the’judge who tries the case. The proponents were not injured by this order. Had it not been understood that the requests might-be handed to the judge and passed upon as of that day, an adjournment would have been had to allow the contestants to comply with the rule.

The request to adjourn was withdrawn upon the assurance before *432stated, and tbe proponents availed themselves of the benefits secured thereby, without in any manner objecting to the arrangement. Assuming, therefore, for the purposes of this decision that the practice was irregular, or even that it comes within the prohibition of Rule 32, yet the appellants have waived their right to insist upon the objection.

The order should be affirméd, with costs and disbursements.

Order affirmed, with costs and disbursements.