
    Matter of Walter Weston, Deceased.
    (Surrogate’s Court, New York County,
    July, 1908.)
    Wills: The testamentary instrument or act — Execution of will — Evidence of execution — Sufficiency of evidence — Proof of codicil; Exemplification of foreign probate: Probate, establishment and annulment — Probate — In general — Will not capable of production; Procedure — Parties — Proponent.
    A will may not be admitted to probate in this State by proving a codicil thereto which displaces one of the three persons named as executors in the will and appoints another as executor in his stead and makes no disposition of property whatever, without proof that the will was duly executed according to the laws of this State.
    An exemplified copy of the proceedings of the court of the District of Columbia which admitted the will to probate is incompetent and inadmissible as evidence of compliance with the statutory requirements of this State.
    Where the will is deposited in a court in the District of Columbia by which it was admitted to probate, and one of the subscribing witnesses resides in New York and one in New Jersey, it cannot be proved by testimony taken on commission.
    The interest of the decedent acquired under the will of his father in undisposed of real estate situate in the county of New York is sufficient to give the Surrogate’s Court therein jurisdiction to entertain a proceeding to probate papers propounded as a will of the decedent and a codicil thereto; but where the petitioner is unable to produce or secure the production of the will as distinguished from the codicil, his petition for probate of the will upon proof of the codicil alone will be dismissed.
    Proceeding upon the probate of a will.
    Harry Van Ness Philip, for proponent.
    Sullivan & Cromwell, for contestants.
   Beckett, S.

The interest which decedent acquired under the will of his father in the undisposed of part of the real estate of the latter, situated in this county, is sufficient to give the court jurisdiction to entertain this proceeding to probate the papers propounded as the will of the decedent and the codicil thereto. Code Civ. Pro., § 2746, subd. 4. The right of the petitioner to initiate the proceeding has been satisfactorily established upon the inquiry I have made in regard to his status. Gove v. Harris, 4 Dem. 293. He is, however, unable to produce or secure the production of the paper propounded as the will as distinguished from the codicil, in order to prove it in the customary way in open court, and he cannot prove it by commission because the subscribing witnesses reside one in this State and the other in the State of Hew Jersey, and the paper itself is deposited in a court in the District of Columbia, by which it has been admitted to probate. Matter of Cameron, 47 App. Div. 120, affd. 166 N. Y. 610; Matter of Law, 80 App. Div. 73, 75, 76, affd. 175 N. Y. 471. Nor can he prove it by an exemplified copy of the proceedings of the court which admitted it to probate, as it is incompetent and inadmissible as evidence for the purpose. Code Civ. Pro., §§ 2618, 2619, 2620; Matter of Delaplaine, 45 Hun, 225. It is proposed to probate or establish the will by proving the codicil which refers to it. This cannot be done without showing that the statutory requisites as to the execution of a will have been complied with, and this the petitioner is in no position to do in this case. Matter of Andrews, 43 App. Div. 401; Matter of Conway, 124 N. Y. 464; Matter of O’Neil, 91 id. 523; , Cook v. White, 43 App. Div. 393, affd. 167 N. Y. 588; Matter of Carll, 38 Misc. Rep. 474-5; Matter of Emmons, 110 App. Div. 701. In Brown v. Clark, 77 N. Y. 369; Matter of Campbell, Id. 84, and Cook v. White, supra, where it was held that a legally executed codicil revived or effected a ratification or establishment of the will, there was proof of compliance with the statutory requirements as to the will itself. The codicil cannot be admitted to probate as a separate and independent testamentary paper. It displaces one of three persons named as executors in the propounded paper, and appoints another as an executor thereof in his stead, and makes no disposition of property whatever. From the nature of this change it is obvious that the operation and efficacy of the codicil are necessarily dependent upon the establishment or proof of the paper to which it relates as an effective testamentary instrument. Matter of Emmons, 110 App. Div. 704, 705. Petition dismissed. As a consequence, the motions for commission and temporary administrator must be denied.

Petition dismissed.  