Majority
p. 110(95 Misc. Rep. 463) In re NEIL’S WILL. (Surrogate's Court, New York County. May 16, 1916.)
Headnote
Wills @=217—Probate as Will or Personalty—Bab,A proceeding for the probate of a will as a will of personal property, resulting in its probate as such, was no bar to a subsequent proceeding for its probate as a will of real property, where the petition therefor alleged that when it was originally offered for probate the proponent was ignorant of the existence of any real property.
[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 504, 525; Dec. Dig. @=217.]
^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Proceeding for the probate of the will of James Neil as a will of real property. Will admitted to probate as a will of real property.
Blandy, Mooney & Shipman, of New York City, for petitioner.
Frank H. Richmond, of New York City, for contestant Neil.
Harold A. Callan, of New York City, for contestant Lockwood.
Wilbur Larremore, of New York City, special guardian.
This is a probate proceeding for the probate of the will of testator as a will of real property and comes before me on objection to probate. This same will was admitted to probate by a decree of this court on July 3, 1915, as a will of personal property. 90 Misc. Rep. 537 , 153 N. Y. Supp. 647 .
The present proceeding is brought, so the petition alleges, for the reason that at the time the will was originally offered for probate the proponent was ignorant of the existence of any real property. The will in its terms bequeathes and devises personal and real property. Upon the hearing counsel for the contestant waived the proof of factum
p. 111
and agreed that the testimony be closed. The main objection urged by contestant is that the former probate proceeding is a bar to this proceeding. With this I do not agree.
The objections are dismissed. Present decree admitting the paper propounded as a will of real property.