
    Matter of the Estate of Emma C. Sands, Deceased.
    (Surrogate’s Court, New York County,
    January, 1909.)
    Another action pending — Pendency of action in another jurisdiction.
    Former adjudication — Adjudications operative as bar or as conclusive evidence — In general — Court rendering judgment — Inferior
    courts — Foreign Probate Court.
    Wills — Establishment and annulment — Probate — Procedure — Evidence— Decree of foreign Probate Court.
    In a proceeding for the probate of a will in a Surrogate’s Court of this State a judgment of a Probate Court in a foreign State admitting to probate an alleged subsequently executed will of the decedent, such Probate Court being an inferior court of limited jurisdiction and not capable under the law's of such State of becoming a final or conclusive adjudication, until the expiration of the period allowed by the laws of that State for the commencement of an action or proceeding in a Circuit Court to determine the validity of the will, and then only in the event that no such action or proceeding has been commenced within the prescribed period, is not admissible in evidence where such action has been brought in the Circuit Court under the laws of such foreign State.
    In such a case the pendency of an action in the Circuit Court of a county in a foreign State brought by the proponent in the present proceeding and certain other parties thereto, within the time allowed 'by the statutes of that State for the purpose, to test the validity of the said will admitted to probate in that- State, is not available as a bar to the prosecution or maintenance of the present proceeding where all the parties to said proceeding are not parties to said action and the issues raised in the action are not entirely the same as and do not cover or necessarily involve all the issues presented in the present proceeding.
    Proceeding upon the probate of a will,
    
      John B. Pine, for petitioner.
    Charles W. Ridgway, for contestant.
    Warren S. Bartlett, special guardian.
   Beckett, S.

It is admitted that most of the property of decedent, which consisted entirely of personalty, was situated-in this State at the time of her death, and the evidence establishes that at that time she was a resident of this county and that the papers propounded as her will and codicil thereto were in all respects duly executed in conformity with the law of this State and are entitled to be admitted to probate as her last will and testament unless the proceedings which were had in the courts of the State of Missouri prevent that result. The judgment of the Probate Court of Independence county, in the State of Missouri, admitting to probate an alleged subsequently executed will of the decedent, which the contestant sought to introduce in evidence to defeat the probate of the papers propounded in this proceeding, was made in what is known as a probate proceeding in common form, and from the nature of that proceeding no notice thereof was required to be given to the heirs-at-law or next of kin of the decedent or to any person in any way interested in sustaining the validity of the papers here offered for probate; and it does not appear that notice of the proceeding was given to or actually had by any of them or by any party to this proceeding, although it might not unreasonably be surmised that that proceeding was not unknown to such of them as were interested in establishing the will affected by it and in preventing the probate of the papers here propounded. After the termination of the proceeding in the Independence county Probate Court an action was brought in the Circuit Court of Jackson county, in the State of Missouri, by the proponent in this proceeding and certain other of the parties thereto, within the time allowed by the statutes of that State for the purpose, to test the validity of the will so admitted to. probate in that State. That action or proceeding is still pending, but all of the parties to this proceeding are not parties thereto. No attempt was made by the contestant in the present proceeding to prove the last mentioned will in accordance with the requirements of the provisions of our Code relating to the probate of wills by Surrogates’ Courts, he entirely resting his case upon the contention that the proceedings in the State of Missouri were a complete bar and answer to the present proceeding. Under the laws of the State of Missouri the judgment or action of the Missouri Probate Court was not capable of becoming a final or conclusive adjudication until the expiration of the period allowed by those laws for the commencement of an action or proceeding in the Circuit Court to determine the validity of the will, and then only in the event that no such action or proceeding had been commenced within the prescribed period. Such action or proceeding was brought and, as previously stated, is now pending. The judgment or action of the Probate Court, which is an inferior court of limited jusisdietion, was entirely interlocutory and inconclusive in character, and of no binding force whatever at the time of the commencement of the action in the Circuit Court, and the commencement of that action immediately effected a vacation of the action of the Probate Court and left the question of the validity of the will entirely open for trial and decision by the Circuit Court precisely and as completely as if the action in the Probate Court had never been taken. Hogan v. Hinckley, 195 Mo. 532; Cust v. Lust, 142 id. 630, 637. The judgment or action of the Missouri Probate Court not being a conclusive adjudication in the State of Missouri, obviously it cannot operate as such an adjudication in this State. But whatever may be the force of that judgment in the State of Missouri, it could not and does not preclude or estop the proponent and the other parties to this proceeding who were not parties to the action or proceedings in which it was obtained from entirely ignoring such action or proceedings and proving despite them that the instruments under which they claim were the last will and testament of the decedent. Matter of Law, 56 App. Div. 458; Matter of Gaines, 84 Hun, 520, 523; affd., 154 N. Y. 747; Garvey v. United States Fidelity & Guaranty Co., 77 Hun, 395; Overby v. Gordon, 177 U. S. 214, 227; Tilt v. Kelsey, 207 id. 43, 51, 59; Bridgman v. Fayerweather, 140 Mass. 415, 416; Bowen v. Johnson, 73 Am. Dec. 51. It follows that the record of the proceedings in the Probate Court of Independence county cannot be admitted in evidence in this proceeding. All the parties to the present proceeding are not parties to the action in the Circuit Court of Jackson county, and the issues raised in that action are not entirely the same as and do not cover or necessarily involve all the issues presented in this proceeding, and the judgment which might be rendered in the Circuit Court need not necessarily or at all affect the relief the proponent seeks here. Such being the case, the pendency of the proceeding in the Circuit Court is unavailable as a bar to the prosecution or maintenance of this proceeding. Stowell v. Chamberlain, 60 N. Y. 272, 276; Mandeville v. Avery, 124 id. 376, 387; Clark v. Vilas Nat. Bank, 22 App. Div. 607. Having concluded that the proceeding in the State of Missouri presents no obstacle to the probation of the papers propounded, I shall, as previously intimated, admit them to probate as constituting the last will and testament of the decedent.

Decreed accordingly.  