
    
      The second probate of the Will of Peter Smith.
    A will "once proved ás a will of personalty may afterwards be proven as a will of real estate, but in that event must be recorded anew by the Surrogate. ...
   The Surrogate.

This will was offered for próbaté a year since, as .'a will - of personal property only. All the'' subscribing witnesses were "then residing out of the State,1' and proof of. their handwriting and of that of the testator -', was all that could be or was adduced without going to the expense of a' commission, which the proponent did hot wish to do. The proofs being satisfactory to the Surrogate, - the will wás then admitted to probate and-recorded as a will, of personal property only. ■ (Laws of 1837, ch. 460, § 20.) 1

The executor now presents his petition setting forth that he has since discovered that there is real estate within this State, which was owned in fee by the testator at his death, and praying to produce the subscribing witnesses, now in this State, for examination, and to prove the will as a will of real estate. ( Ut supra, § 17.)

There is no objection to this course; the will can be propounded anew as a will of real estate, and admitted to probate as such. But, having been once recorded'in this office as a will of personal estate only, it must be recorded anew, should it now go to probate a second time, as a will of real estate. Had the probate, as a will of real estate, been the first in point of time, a second recording would “ not be necessary ” {supra, § 19), but it is eminently so where the reverse is the case, and where the less important probate proceeding is succeeded in point of time by the superior one.  