Misc.] Surrogate's Court, New York County, October, 1918. templated the assessment of the tax on the property as it was left by the decedent, and that the only taxable interest was the value of the property over the mortgage. The court, in its opinion, cited with approval the case of Matter of Sutton, supra, a fact which adds emphasis to the assertion made above that the decision in the case was not controlled by the provisions of section 250 of the Real Property Law, which apparently has no counterpart in the statute books of Massachusetts. The rule as to the payment of debts of decedent in that state is the common law, which the record shows is in force in the District of Columbia. If the real estate of this resident decedent was situated in the state of Massachusetts instead of in the District of Columbia, the contention made by the executors herein could be urged with equal show of reason. If successful, a double exemption would result. The state of Massachusetts would impose a tax only on the equity of redemption, and the mortgage debt would again be deducted from the personal property in the hands of the executors. The personal estate of the decedent, taxable within the state of New York, should not be resorted to and depleted for the purpose of discharging a specific lien on real estate situated outside of this state, specifically devised in its incumbered condition. I am of the opinion that the appraiser erred in his allowance of the deduction of $65,000 from the personal property of the decedent. The order assessing tax will be reversed and the report remitted to the appraiser for correction, as indicated herein. Order reversed. Surrogate's Court, New York County, October, 1918. [Vol. 104. Matter of the Probate of a Paper Propounded as the Last Will and Testament of MARGARET E. ZIMMERMAN, Deceased. (Surrogate's Court, New York County, October, 1918.) Wills probate-right of assignee of next of kin to contest-general principles relating to probate proceedings discussed. Where the only heirs at law and next of kin of a testatrix were a nephew and a niece, and the latter by an instrument in writing executed before the death of testatrix assigned to a nephew, his executors, administrators and assigns, certain moneys and other property, real or personal, to which she then was or might become entitled by reason of any or all of her rights, interests or claims in and to any of the estates or properties mentioned in said assignment, and the assignee executes a deed by which he transferred in trust all the property referred to and covered by said assignment to him, to invest and reinvest the same for the benefit of himself and wife during their joint lives, he has such a sufficiently distinct interest under the assignment as entitles him to contest the probate of the will, though the trustee under the deed of trust files no objection thereto. The general principles, statutes and judicial decisions regulating parties to probate proceedings, reviewed and discussed. PROCEEDING upon the probate of a will. Curtis, Mallet-Prevost & Colt (Wallace MacFarlane, of counsel), for proponents. Guggenheimer, Untermyer & Marshall (Charles S. Guggenheimer and Arthur M. Wickwire, of counsel), for C. Clinton Furniss, contestant. Reiley & Harrison, for William P. Furniss, contestant. Misc.] Surrogate's Court, New York County, October, 1918. Charles May, for R. M. Minton. Cornelius J. Sullivan, for N. Y. Society for Prevention of Cruelty to Children. J. Mayhew Wainwright, for Society for Prevention of Cruelty to Animals. Butcher, Tanner & Foster, for Church Mission of Help. Middlebrook & Borland, for St. Michael's Church. Frederic DeP. Foster, for Society for Relief of Destitute Children of Seamen. FOWLER, S. This proceeding being a contested probate in which a jury was demanded came on for hear ing at the Trial Term of this court held for June, 1918. There being a preliminary question raised by the proponents concerning the status of an objector to the probate, the surrogate, in conformity with the modern and now established practice in this court (see Rule IV, N. Y. Surr. Court of 1880, 4 Redf. 541; Matter of Hamilton, 76 Hun, 200; Henry v. Henry, 4 Dem. 255), a practice recognized also in modern English courts of probate (Order XXXVI, R. 8; Mortimer Prob. Pr. 590), and in all other courts of like character (Miller's Irish Prob. Pr. 564), took preliminary cognizance of the issue of status and interest, meanwhile withholding the other issues to a convenient day for trial before him with the aid of a jury. On investigation I find that this course was substantially the practice in the Prerogative Court. Waller v. Heseltine, 1 Phil. 170, seems to have been misunderstood by the chancellor in Public Administrator v. Watts, 1 Paige, 347, which in any event must be deemed overruled by Matter of Surrogate's Court, New York County, October, 1918. [Vol. 104. Hamilton, supra, as must Norton v. Lawrence, 1 Redf. 473, following Public Administrator v. Watts. Although the cause is now actually on for trial and final disposition at a jury session of the court, the actual presence of a jury not being essential to the disposition of such preliminary issue of interest, no jury was required to be drawn or sworn for the single purpose of disposing of the preliminary issue. Nor was it necessary that the determination of the status and interest of the contestant-objector should be decided in the course of the actual submission to the jury, under the late statute, of the issues of fact raised by objections to the probate. In the absence of any statutory direction to that end the course of the trial in a contested probate proceeding, where a jury is demanded, rests in the discretion of the surrogate presiding when the issues appear on the trial docket of this court. There seems to be some misapprehension concerning the fundamental nature of a trial of issues of fact in a contested probate proceeding conducted by a surrogate with the assistance of a jury. The learned counsel for the contestant-objector, whose status and interest is challenged, seems to entertain the conception that a probate proceeding in this court, since the Surrogates' Act of 1914, has become a common-law action, to be governed by all the provisions governing trials of other common-law actions at law in the Supreme Court. Consequently he urges that all issuable matters of fact in this probate proceeding are to be determined in the course of the actual trial of the issues of fact raised by the objections; or, in other words, in the presence of the jury when a jury has been duly demanded by a contestant-objector. This position carries its own refutation, for, in the first place, the preliminary issue of status or interest is not raised by the Misc.] Surrogate's Court, New York County, October, 1918. written objections, but arises dehors such objections, by a preliminary motion as to interest taken ore tenus, if the proponent please, or in writing, if he so prefer. In any consideration of the nature of a trial with the aid of a jury in a contested probate proceeding, it is necessary to bear in mind the object of the proceeding, and how far the sections of the Code of Civil Procedure, regulating the trial of actions at law in the Supreme Courts, should be relevant to a contested probate proceeding in the Surrogates' Courts. In Matter of Huber, 103 Misc. Rep. 599, I very lately had occasion to go over some of the ground indicated, and to point out several of the essential differences between an action at law in the other courts of record of this state and a special proceeding for probate of a testamentary script propounded and resisted, when the issues come on for trial before a surrogate with the aid of a jury. It is true that the Surrogates' Law of 1914 (Code Civ. Pro. § 2770) contains the authority for a cross-application of the sections of the Code stating rules of procedure in the other courts of record to contested probate proceedings conducted with juries in this court. But a cursory reading of section 2770 discloses that the cross-application of such other sections is very provisional, and it should be so in view of the essential differences between proceedings in the ordinary courts and in the courts of the surrogates. The fact that by statute a contestant-objector to a proceeding for probate in this court is now become. entitled to submit to a jury certain issues of fact raised by his written objections (Code Civ. Pro. § 2617) does not of itself import that all the rules regulating trials by jury in actions at law in the other courts of record apply throughout to special proceedings in this court. The statute conferring a right of trial by jury in this |