By the Court,
T. R. Strong, J.The revised statutes, (vol. 2, p. 66, §§ 55 to 62 inclusive, and page 608, §§ 90 to 98 inclusive,) authorized an appeal to be made to a circuit judge from the decision of a surrogate, admitting or refusing to admit, a will to record or probate, and prescribed the proceedings to be taken on the appeal. Among other things, they provided that the circuit judge should affirm or reverse the decision of the surrogate as should be just. If he affirmed the decision, he was to award costs, to be paid by the party appealing, either personally or out of the estate of the deceased, as he should direct. If he reversed the decision upon a question of law, costs were in like manner to be awarded against the party maintaining the decision of the surrogate, either personally or out of the estate of the deceased. Such affirmance, or such reversal upon a question of law, with the award of costs, was to be certified to the surrogate, who was to enforce the payment of the costs. If the circuit judge reversed the decision of the surrogate on a question of fact, it was directed that an issue was to be made up to try the questions arising upon the application to prove the will. From the decision of the circuit judge, when no issue was directed, an appeal lay to the court of chancery, which court was directed to prescribe by rule the course of practice thereon. (2 R. S. 609, § 100, p. 611, § 120.) It will be seen by this brief statement, that under the revised statutes, the power of the circuit judge, in respect to the decision to be made by him, was limited to a reversal or affirmance of the decision of the surrogate, with costs ; that when the reversal was upon a ques*663tion of law, the reversal was to be certified to the surrogate, and when upon a question of fact, an issue was to be made up ; and that he could make no other or further decision. (See Stewart's Executors v. Lispenard, 26 Wend. 318 to 324.) But the power of the court of chancery, upon appeal from the decision of the circuit judge, was not thus limited; and that court undoubtedly, by virtue of its general jurisdiction, and having the whole case before it by the appeal, had authority not only to reverse or affirm the decision of the circuit judge, and that of the surrogate, but upon reversing the surrogate’s decree, to make such a decree as the surrogate ought to have made. It had power to declare the instrument valid or void as a will, and to adjudge that it be or be not admitted to probate. (Stewart's executors v. Lispenard, above cited. Brinckerhoof v. Remsen, 8 Paige, 502; same case on appeal, 26 Wend, 325, 340. Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 92, 93.) Under our present judicial system, the appeal which was to be made to the circuit judge, by the provisions above referred to, is to be made to this court. (Judiciary act, Laws of 1847, p. 324, § 17.) And by the same section these provisions are to apply to such appeal, so far as the same are applicable and consistent with the constitution and the provisions of that act. The appeal in the present case was made under those provisions, and the section of the judiciary act above given. This court had, therefore, all the powers in relation to the appeal, which belonged to a circuit judge upon a like appeal to him, and might make the same decision which he could have made. Perhaps also, it had the same powers upon the appeal, which belonged to the court of chancery upon appeal from the decision of a circuit judge, pursuant to the aforesaid provisions, and might finally determine the case.
By the 6th article of the constitution, and the 16th section of the judiciary act, (Laws of 1847, p. 323,) this court is invested with the powers and jurisdiction which were possessed by the court of chancery; and all laws relating to that court, its jurisdiction, powers and duties, are applicable to this court, its powers and duties, so far as the same can be so applied, and are *664consistent with the constitution and said act. The effect of the constitution and judiciary act may be to unite in this court, in respect to such an appeal, all the powers of the circuit judge upon appeal from the surrogate, and of the court of chancery upon appeal from the circuit judge. Unless this effect has been produced, it is very clear that the judgment in this case, as entered, goes further than was authorized. It is not necessary now to decide the question suggested, as to the extent of the powers of the court in such a case ; for assuming that it had power to give such a judgment as has been entered in the present case, it was not required to go that'length. It might have stopped with a reversal and an award of costs. Whether it would give a judgment more extensive than that, rested entirely within its discretion. That is the extent to which a circuit judge could have gone, and I see nothing in this case which calls upon this court to go further. In my opinion it would not be a sound exercise of discretion to do so. If the respondent has, as is alledged in the affidavit upon which the motion in part rests, further evidence, no reason is perceived why he should be concluded from commencing anew before the surrogate, and in that way having a new trial. It is only when it is apparent that all the evidence which exists in the case has been produced, or there is some special reason for it, that the court should finally dispose of the case.
[Monroe General Term, September 6, 1852.Selden, Johnson and T. R. Strong, Justices.]
It is proper to remark that this was not a case for directing an issue. The question presented upon the appeal being one of law purely — there was upon the evidence no question of fact. (See cases before cited.)
The judgment must therefore be limited to a reversal of the decree of the surrogate, with an award of costs to the appellants, and must be modified accordingly.
No costs are allowed to either party on this motion.