
    In the Matter of the Probate of the Will of William Watson, Jr., Deceased.
    
      (Court of Appeals,
    
    
      Filed February 12, 1892.)
    
    1. Wills—Revocation of probate.
    Proceedings for revocation of probate were carried on from their commencement as for the reproving of the will, evidence being given as to its execution and then as to mental and bodily infirmities and incompetency of testator. The surrogate dismissed the application for revocation and confirmed probate by a decree. No question was raised as to the construction of the will. Held, that there was nothing for the surrogate or general term to pass on except as to the legal execution of the will and whether its probate should stand.
    :2. Same—Capacity to execute.
    Where the surrogate upon conflicting evidence decides that a will was legally executed by a testator possessing proper mental capacity and not unduly influenced, and there was evidence to support his conclusion and his decision is affirmed by the general term, this court is concluded by such affirmance.
    •3. Same.
    Where all persons interested in a will are duly in court upon a previous probate, their remedy, where the original petition failed to describe the will as required by § 2614 of the Code, is either through a proper application to the surrogate in that proceeding or by an appeal from his decree. Such objections arc not proper in a subsequent proceeding to obtain a revocation of the probate.
    Appeal from judgment of the supreme court, general term, ■•second department, denying motion for revocation of probate based upon allegations of incapacity, fraud and undue influence.
    
      K Countryman, for app’lt; Cornelius M Kene, for resp’t.
   Per Curiam.

This was a proceeding to obtain a revocation of the probate of the will of William Watson, deceased, and was instituted by the petition of certain of his next of kin. They set up the incompetency of the testator and undue influence exerted in procuring the execution of his will; that the will was not properly executed and that it was not sufficiently proved. They prayed that the decree admitting the will to ■probate should be set aside as irregular, for the vacation of letters testamentary and for the revocation of the probate. When the proceedings came on for a hearing before the surrogate, they were •carried on from their commencement as for the reproving of the will. The proponents gave evidence bearing upon the execution of the will. The contestants then introduced evidence to show .such mental and bodily infirmities and the existence of such habits of life and of influences as, in their view, tended to establish the incompetency of the testator to make a valid will, and that the one proposed did not express his testamentary purpose. The proponents introduced evidence to rebut any such inferences .and at the conclusion of the hearing the surrogate decided in favor of the proponents, dismissing the application for revocation of the previous probate and confirming it by a decree. Ho question arose as to the construction of the will and the proceeding was ■confined by the petition and by the proofs, upon the hearing, to d contest over the validity of the instrument propounded as the last will'of the deceased. "

Nor did the requests by the contestants for findings refer to any construction of the will. Although the surrogate in his brief opinion and decree made no reference to a construction of the will, yet at the general .term the learned justices in their opinion, after reviewing the.proofs and agreeing with the surrogate, proceeded to consider the question of whether the testator’s will had executed a power of appointment, conferred by the will of testator’s father.

Upon this proceeding no question as to the legal construction of the provisions of the testator's will arose, or could be properly passed upon by the surrogate, or by the general term. There was nothing for these tribunals to pass upon except as to the legal execution of the will, and whether its' probate should stand. Its construction was not involved.

As to the question of whether the will was legally executed bjr a testator possessing proper mental capacity and not unduly influenced, we are concluded by the decision. The evidence upon which the surrogate decided was conflicting and we cannot say that there was wanting sufficient and competent evidence to sup; port the conclusion at which he arrived. He was affirmed, upon an appeal to the general term by the contestants, and there the question was set at rest.

Certain questions are raised as to the validity of the first decree admitting the will to probate. The appellants say that the origl nal probate petition failed to describe the will,- as required by | 2614 of the Code, and that the two decrees upon that probate proceeding were void; the first, because it did not determine the construction .of the will, though an issue had been raised by the answer of a party; and the second, which did give a construction to the will, because it was rendered without any due adjournment of the» previous proceedings.

It is sufficient in answer to say that these appellants and all persons interested were duly in court upon the previous probate proceedings and their remedy,.with respect to such objections, was either through a proper application to the surrogate in that proceeding, or by an appeal from his decree. • Such objections are not properly in the present proceeding. Upon such a proceeding as this the statutory duty of the surrogate is performed bj the rendition of a decree which either revokes the probate, or confirms it. See Art. II, title III, chapter 18, of the Code of Civil Procedure.

For the reasons here assigned the order and judgment of the general term should be affirmed, with costs.

All concur, except Maynard, J., taking no pari 
      
       Affirming 39 St. Rep., 42.
     