such roughness in a person habitually gentle and refined may have a totally different significance. It is not the abstract act or feeling which constitutes a symptom. It is the departure from the normal. Without proof of the normal condition of testator, how is the surrogate to determine whether the eccentricities of a testator are normal or abnormal? In this cause unrelated instances of eccentricity have no legal sequence, without proof of the normal manners, habits, and conduct of John Hock throughout his hard-working life. Mudway v. Croft, 2 Notes of Cases in Ecc. Courts, 438. In the foreign case just cited the conclusions concerning the legal effect of eccentric conduct as bearing on testability are worked out with precision and thoroughness, and the conclusions in question commend themselves to my judgment.

[5] Probate courts are alike the world over. Their probate jurisdiction, unlike the civil jurisdictions of other tribunals, has usually a common origin and early history, and the exercise of all probate jurisdictions operates on like conditions and under like circumstances. Thus the foreign judgments of probate courts have a cogency in testamentary causes in this country which other foreign judgments do not have on other domestic courts. Surrogate Bradford, facile princeps of the probate officers of this country, and the Court of Appeals of this state, have frequently resorted in testamentary causes to other probate jurisdictions for light and illustration. Such high precedents seem to me to be founded in good reason. The opinion of Sir H. Jenner Fust in Mudway v. Croft is such a one as deserves attention. in any testamentary cause involving proofs of eccentricity and their legal effect. The opinions of this learned judge are frequently cited by both Surrogate Bradford and the Court of Appeals of this state. It is certainly impossible to compare the eccentricities of John Hock with those of the average man; for no such man exists, except in imagination. Without precise proofs of John Hock's ordinary habit of mind and body, it is impossible for the surrogate to say whether unrelated instances of eccentricity in his case have or have not a bearing on John Hock's mental condition on the day the testamentary papers were executed. The surrogate cannot, therefore, attach much importance to this branch of the contestants' proofs in this cause. They are too unrelated.

[6] There was also evidence given in this matter of some possible delusions on the part of John Hock, not at the precise moment of testamentation, but at a time when John Hock was undoubtedly managing his ordinary affairs, looking after Jacob's children, and able to take care of himself. If we assume that the testimony bearing on the alleged delusions of John Hock establishes such delusions, and on that point there is grave doubt, as the testimony is not very clear, what is the effect of such delusions on the mental capacity of John Hock at the moment of testamentation? It is not enough to establish occasional delusions of a testator. They must in some way enter into the will itself in order to have legal consequences. The will complained of must be the actual offspring of the delusion; otherwise the two things stand unconnected. It is not apparent, if we assume that John Hock had several delusions as to matters not connected with his will, that the contestants have in any way established in this cause that the

will was their offspring. In so far as such delusions show general weakened mentality, they may have some indirect consequence in view of subsequent events, but in that connection only.

We now come to the serious point in this cause. The will and testament propounded were executed by John Hock on the 27th day of April, 1910. On the 8th day of May, 1910, John Hock, the testator, was taken away from his home to Bellevue Hospital, and upon the 9th day of May, 1910, he was adjudged insane, and committed by a justice of the Supreme Court to the Manhattan State Hospital, Ward's Island, where he was taken on May 11, 1910. On June 2, 1910, John Hock died. Thirteen and one-half hours after death, an autopsy on the body of John Hock was performed by the superintendent of the Manhattan State Hospital, by consent of Jacob Hock, the son and principal beneficiary under the will of John Hock. If Jacob Hock had been fearful of consequences, he would have withheld his assent to such autopsy. Fortunately he did not.

[7] The medical evidence given in by the contestants was, in the main, furnished by the physicians attached to the hospitals. In the course of the examination of the physicians, certain hospital records were allowed to be used by the physician who made them to refresh his recollection, in accordance with the rule that, where shown to be true at the time made and that the witness has no independent recollection of the facts, a memorandum itself may be read in evidence. [8] But the hospital record itself was not allowed in evidence. Such course seems to have been consistent with the authorities on that head. Guy v. Mead, 22 N. Y. 465. It seemed to the surrogate that the records of the hospital were not entitled to be regarded as public records, and to be received as evidence of the facts therein stated. Immediately after this ruling, the case of Levy v. J. L. Mott Iron Works, 127 N. Y. Supp. 506, appeared in the reports; and that adjudication, if known, would have constrained the surrogate in any event to reach the conclusion he had just applied in this cause. But as both parties to the controversy constantly invoked the records of the Manhattan State Hospital, first objecting to them and then insisting on them in turn, they finally consented, upon being reminded of this inconsistency, that the records of the Manhattan State Hospital, including the result of the autopsy, should be received in evidence before the surrogate without objection. This was accordingly done.

[9] In the course of the cross-examination of the medical experts put on the stand by contestants, the proponent's counsel read to the witnesses extracts from medical works of authority, and asked if they did not express opinions different from those testified to by the witness on the stand. Upon the motion of the guardian for infants, the surrogate excluded and struck out parts of these extracts, where the medical witness stated that he did agree with them. It is sometimes the custom on trials of this character to read from medical books written by eminent physicians, and ask whether or not authors whom the witness admitted to be good authority have not expressed opinions different from that given upon the stand. In such cases the reference is not for the purpose of making the statements in the books evidence

be given to the testimony of the witness. The extent to which such examination may go has been held discretionary with the court, and that there is no well-founded objection to it. Egan v. Dry Dock, E. B. & B. R. R. Co., 12 App. Div. 556, 570, 571, 42 N. Y. Supp. 188. But the questions and answers in this cause did not always agree strictly with the line of authority mentioned. In some instances portions of medical books were read from by cross-examiner, and witness was asked if he subscribed to such opinions, and he stated that he did. The extracts in question were generally reached by the inductive method.

[10] Now, it is well established that a party calling an expert cannot read from medical works on inductive science, and ask his expert if he agrees with the statements of the author, or if it accords with his experience. Foggett v. Fisher, 23 App. Div. 207, 48 N. Y. Supp. 741; Pahl v. Troy City Ry. Co., 81 App. Div. 308, 81 N. Y. Supp. 46. The distinction is undoubtedly narrow. It is adverted to in McEvoy v. Lommel, 78 App. Div. 324, 80 N. Y. Supp. 71. The surrogate, therefore, struck out all the answers of the experts on the cross-examination which were to the effect that they agreed with the statements of medical authors read to them by the cross-examiner. When the answers were to the effect that the expert witness did not agree with the particular authors read to him, the answers were allowed to stand; but permission was given to recall the medical witnesses, if counsel so elected. This result may not be quite fair to the cross-examiner, as he is bound by unfavorable answers and gets no advantage of the favorable answers of the expert; but the ruling seems to be in line with the authorities quoted. However, in the conclusion arrived at in this cause, the surrogate excluded from consideration the extracts from any medical authority not produced on the stand. It is now necessary to review briefly the elaborate medical testimony given in on the hearing. The testimony of the physician at Bellevue was to the effect that John Hock was suffering from senile psychosis (which, in the vernacular, is nothing but senile degeneration), and that John Hock, by reason thereof, was of unsound mind on the 8th or 9th of May, 1910. A very able and really learned cross-examination of the medical experts on the part of counsel (more profound than the importance of the cause warranted, as nothing whatever may be affected by the decree, the testator having left apparently no personal property and the land devised by the will being in New Jersey) showed that the physician at Bellevue had little opinion upon the duration of the disorder affecting John Hock. It might according to his testimony, have been of brief duration-indeed, of a duration so brief as not to include the date on which the will propounded was executed. The physicians at the Manhattan State Hospital were in a good position to give testimony of weight. It appears from their testimony that John Hock was afflicted with a very rare species of tumor in the brain, glioma of the corpus callosum, some 20 instances only of which are known to science. John Hock, however, it is to be noted, died of pneumonia.

The first diagnosis at the Manhattan State Hospital seems to have revealed that John Hock was afflicted with some sort of hemiplegia,

or paralysis; but nothing definite was proved as to its origin, or as to the date it first occurred, and one physician stated on the stand that all of his professional diagnosis amounted to nil, in view of the autopsy on the body of John Hock. The testimony of the Manhattan medical authorities seems to the surrogate to completely nullify the testimony of the Bellevue physician to the effect that John Hock was afflicted with senile dementia, and to establish that John Hock's sole mental malady was occasioned by the tumor before mentioned. The substance of the competent, but very technical, medical testimony given in on the hearing seems, when translated into common speech, to establish the following facts, namely: That a tumor in the brain does not necessarily occasion insanity until the premortal symptoms set in, and that the breakdown from this disorder may be sudden and complete, and at a late stage of the patient's existence. During the progress of the disease, the functions of the brain often adapt themselves to the pressure occasioned by the tumor, and thus ordinary mental conditions may coexist with the various stages of the growth of tumors in the brain. That such is the beneficent course of nature is a matter of common observation, which in ordinary matters could be established without resort to expert testimony. The physicians at Bellevue Hospital would not and did not state that the disease which possessed John Hock in the end had necessarily any retroactive cause, which impaired John Hock's ordinary mental faculties on the day he made his will. Such, it seems to the surrogate, is the effect of the ponderous medical testimony, when translated into the forms of our common speech. It is obvious that the testimony leaves a hiatus or gap in the contestants' testimony which the surrogate is not at liberty to supply by an inference of his own.

The testimony of John Hock's own physician disclosed nothing of any consequence concerning a specific mental malady. To him John Hock was ill, of what he seems to be uncertain. This physician, however, was a therapeutist, and confessedly inexpert on mental disorders; nor did his testimony go to the day the testamentary papers were executed. His general diagnosis and conclusions seem at variance with those of the very learned physicians put on the stand by contestants. These were the witnesses who were unquestionably qualified as experts on mental derangements, and their testimony did not, in my opinion, aid contestants.

[11] It is at this point that we come to an interesting rule of practice. The contestants, who placed on the stand the hospital staff of physicians, now claim that they are not their witnesses, and that they are not bound by their testimony, because such witnesses are among a large number mentioned in a notice and order procured by the contestants themselves under section 2618 of the Code of Civil Procedure. The contestants would have the surrogate ignore the effect of the adverse testimony of any witness named in such notice or order, and resort to other evidence offered on the insanity issue, so as to spell out in that way intestability.

The practice of filing a notice for the examination of witnesses before the surrogate in contested probates, and procuring an order there

tice in this jurisdiction, and it has grown out of all relation to what I conceive to be the true meaning of section 2618 of the Code of Civil Procedure. A contestant, by simply filing a notice for the examination of witnesses or procuring an order to that end, cannot thereby give such witnesses a privileged status.

In this state, probate by the rules of the ecclesiastical courts, which once guided the New York courts of probate, was originally made in two forms, designated as "probate in common form" and "probate in solemn form." Probate in solemn form might be procured by the interposition of a caveat. Goodrich v. Pendleton, 4 Johns. Ch. 549, 552, 558; Vanderheyden v. Reid, Hopk. Ch. 408, reversed Reid v. Vanderheyden, 5 Cow. 720; Bogardus v. Clark, 1 Edw. Ch. 266; Id., 4 Paige, 623; Heyer v. Burger, 1 Hoff. Ch. 1, 12. These cases cited sufficiently indicate the former use of the caveat in probate pro⚫ceedings in this state. When the original jurisdiction of the old courts of probate devolved wholly on the surrogates, section 11 of chapter 460 of the Laws of 1837 was passed, as a substitute probably for the old caveat. It is extremely doubtful if the act of 1837 was intended to go beyond the old caveat, or do more than bring about a probate more solemn than the ordinary forms of law required. The act of 1837 provided for the examination "of attesting witnesses," after a notice to that end had been served. Two witnesses in common probate sufficed; but after such a notice all the resident witnesses, no matter how many, must be examined. Robertson v. Caw, 3 Barb. 410, 414, Caw v. Robertson, 5 N. Y. 125. This notice, under the act of 1837, was, I think, intended to operate as a caveat, and to have no such extraordinary effect as is now claimed for it.

Chapter 129 of the Laws of 1841, however, increased the scope of section 11 of chapter 460, Laws of 1837, so as to make it apply "to all witnesses whom any person interested in the proof of a will shall request to be examined." These statutes of 1837 and 1841 were ultimately taken into section 2618 of part 2 of the Code of Civil Procedure. The effect of these sections has been since held to inhibit the surrogate from granting probate without the examination of all the witnesses specified in a notice given under section 2618, Code Civ. Proc. Hoyt v. Jackson, 2 Dem. 443, 445, 446; Matter of McGovern, 5 Dem. 424; Matter of Baird, 41 Hun, 89. Such a notice has, therefore, if strictly followed in all cases, become very embarrassing to probate procedure, where neither side produces such witnesses or seeks to examine them.

Surrogate Rollins has held that the duty of producing the witnesses specified in the notice or order under section 2618 falls on proponents, but that whether they are to be examined by proponents or contestants is in the discretion of the surrogate. He has held, also, that, if either party fail to examine such witnesses, it is the duty of the surrogate himself so to do. Hoyt v. Jackson, 2 Dem. 455, 456, 457. The rule stated in Hoyt v. Jackson may be correct. Surrogate Rollins was a probate judge of great distinction and excellence. But, if he is right, why is probate so often allowed in this jurisdiction, after such notice, without the examination of all the witnesses specified in such notice or order? If the statute is as mandatory as it is held in the case last