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In re the Application for the Revocation of Probate of the Last Will of de Haas

24 Misc. 420 Court N.Y. Sur. Ct. English

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p. 420
Matter of the Application for the Revocation of Probate of the Last Will, Etc., of Mauritz F. H. de Haas, Deceased.
(Surrogate’s Court, New York County,
August, 1898.)

Headnote

Surrogate’s Court — Where the Supreme Court had ordered a will probated, the Surrogate’s Court cannot revoke a probate had under the judgment.
Where, after a decree, admitting a will to ■ probate, has been reversed, the will is established and its admission to probate is directed after a jury trial in the Supreme Court and an affirmance on appeal, the Surrogate’s Court has no power to entertain the petition of a contestant, who succeeded in reversing the original surrogate’s decree which admitted the will to probate, for the revocation of the probate of the .will which was had in obedience to the judgment of the Supreme Cburt; the object of the petitioner being to procure a construction /of the will, which, as she, believes, would result in its being declared invalid.
Application for the revocation of proceedings npon the probate of' a will.
Preble Tucker, for petitioner.
Jacob S. Van Wyck, for proponent.

The-will, which is the subject of this controversy, was admitted to .probate, by the surrogate upon a trial before

p. 421
him after a contest. His decree was reversed upon appeal, and the trial of the issues, as to the due execution of the will, which was directed by the Appellate Court to be had at the Trial Term of the Supreme Court by a jury, resulted in establishing the will; and a judgment admitting it to probate was entered at the Special Term of the Supreme Court. This judgment, pursuant to its requirements, was made the judgment of this court. It was after-wards affirmed upon appeal. The present petitioner, who was the successful contestant in the proceedings mentioned, has begun this proceeding to revoke the probate of the will, which was proved in the manner described, claiming that its maintenance is authorized by the provisions of article 2, title .3, chapter 18, of the Code of Civil Procedure. Section 2647 of article 2, which relates to revocation of probate, is a consolidation and re-enactment with certain changes, not here material, of sections 30 and 31 of part 2, chapter 6, title 1, of the Revised Statutes. Vol. 3, 5th ed., p. 142. Section 31 directed that the allegations against the validity of the will or against the competency of the proof thereof must be filed in the office of the surrogate by whom the will was proved. Section 2647 requires that the petition containing the allegations against the validity of the will, or the competency of the proof thereof, and by which the proceeding to revoke probate is initiated, should be presented to the Surrogate’s Court in which the will was proved. The will referred to by both the Revised Statutes and the Code is manifestly one that has been proved before the surrogate or his court. The present is not such a will. It was proved in the Supreme Court pursuant to section 2588 of the Code, and the judgment of that court admitted it to probate. The action of this court in entering its decree" was simply in obedience to that judgment and for the purpose of such subsequent proceedings as might be necessary to carry it into effect or be based upon it. See Matter of de Haas, 24 Misc. Rep. 258 . The principal, if not the. sole, object of the petitioner in commencing this proceeding seems to be to procure a construction of the will of the decedent, which she supposes would result in its being declared invalid. This course could ¡not 'be taken in a proceeding of this character, even if it was otherwise maintainable. Matter of Ellis, 1 Connoly, 206 ; Matter of Soule, 22 Abb. N. C. 267 -268; Throop’s note to § 2647, Code Oiv. Pro. The petition is dismissed.

Petition dismissed.

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