
    In the Matter of the Application of Flora Gaffney, Appellant, a Person Interested in the Estate of Emily L. Gaffney, Deceased, to Revoke the Probate of an Alleged Codicil to the Last Will and Testament of Emily L. Gaffney, Deceased. Mary A. Barry and Others, Respondents.
    Fourth Department,
    December 28, 1906.
    Will — probate not reviewable by appeal from order of surrogate refusing to open probate.
    A proceeding under subdivision 6 of "section 2481 of the Code of Civil Procedure authorizing the surrogate to open, modify or set aside his order is not a proper method to attack the probate of a will, and after probate and after the lapse of two years without any contest being made, the surrogate should deny a petition to open the probate brought under the section aforesaid.
    The testatrix executed her will and codicil in England. The codicil was not signed except as her name appeared in the attestation clause. Proof of the execution of the will itself was not given, whilo the execution of the codicil was not proved by the subscribing witnesses,-who were said to be in England, but only by the testimony of a sister of the testatrix who was present" at the execution. The petitioner, who was a legatee under the will, was cut off by the codicil, and, not being an heir or next of kin, was not notified on the probate. The petitioner did not contest the probate at the time or take any action for two years thereafter.
    Subsequenlly she moved, under subdivision 6 of section-2481 of the Code of Civil Procedure, before the surrogate to open the probate and the petition was denied. , On appeal from the denial of the petition,
    
      Meld, that the question of the proper execution of the codicil was a mixed question of law and fact, and that an erroneous decision thereon could only be reviewed upon appeal, the time for which had expired;
    That such errors were not reviewable on appeal from an order of the surrogate refusing to open the probate.
    Kruse, J., dissented, with opinion.
    Appeal by the petitioner, Flora Gaffney, from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 9th day of June, 1906, denying a petition to 'open the probate of a will and codicil, and for a rehearing of the matter.
    
      Frederick P. Kimball and James M. E. O' Grady, for the appellant.
    
      Walter S. Hubbell, James Breck Perkins, Francis S. Macomber and William N. Cogswell, for the respondents.
   Williams, J.:

The order and decree appealed from should be. affirmed, with costs. ■ •

It is provided by section 2481, subdivision 6, Code of Civil Procedure, that “A surrogate,, in court or out of Court, as the case requires, has power to open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly-discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record 'and of general jurisdiction exercises the same powers. tJp'on an appeal from' a determination of 'the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate ; and his,determination must be reviewed as if an original application was made to that term.” '•

A suggestion was made that a fraud had been committed upon the surrogate in procuring the probate of the will and codicil, but this was met and satisfactorily disposed of, and the' Surrogate’s Court very properly held in this proceeding that no- such fraud existed.. No relief was sought by reason of newly-discovered-evidence or clerical error. So that the relief asked for could only be granted for something covered by the words' in the statute “ or other sufficient cause.” ...

Emily L. Gaffney, the testatrix, Was a resident of Pochester,N. Y., but was temporarily in England when the will and codicil were executed. The will was dated' London, July 2, 1897, was entirely in the handwriting • of the testatrix, including the attestation clause and her own signature, and was witnessed by a physician and a butler. The codicil was dated at London, July 27,1903, was entirely in the handwriting of the testatrix, including the'attestation clause, was not signed by her unless her name in-the attestation clause could be regarded as her signature, and it was -witnessed -by a widow and a spinster. ' . "v.

The will and codicil disposed of all thé property of the testatrix, composed of real and personal. The petitioner here was a legatee, tinder the will, but was entirely cut off by the codicil from all- interest in the estate. The testatrix died at London two days after the. codicil was executed, July 29, 1903. She left real and persona] property, but the amount and value thereof does not appear from the record.

' Proceedings for the probate of the will and codicil were commenced October 26, 1903. The petitioner herein was not an heir .or next of kin of the testatrix, and was not, therefore, cited in the proceeding. The statute did not require it. (Code Civ. Proc. § 2615, subd. 3.) She did not appear in the proceeding. The proofs were taken December 8, 1903, and the decree was made December 12, 1903, admitting the will and codicil to, probate. This proceeding was not commenced until January, 1906, after more than two years had expired. The petitioner claims not to have discovered the facts upon which her application is made until recently.

Besides the allegation of fraud, hereinbefore referred to, the application is based upon the allegations, in brief,

1. That the codicil was not signed by the testatrix, as appears by the paper itself.

2. That there was no sufficient proof given before the Surrogate’s Court to excuse the production of the witnesses to the codicil, and the taking of their evidence, under sections 2618 and 2619'-of the Code of Civil'Procedure.

3. That the evidence of the witness who was produced and sworn before the Surrogate’s Court was insufficient to prove the execution of the codicil.

There was no attempt to prove the execution of the will, except by the proof of the codicil. Proof of the execution of the codicil would be sufficient to authorize the will as well as the codicil to be admitted to probate. The witnesses to the codicil were not produced before the surrogate, or examined as to the execution of the same. It was not suggested that there was any .other reason for their absence except their absence from this State, and the only evidence upon that subject was that their residence, as stated on the codicil, was England; and a sister of the testatrix, who was produced, as a witness before the Surrogate’s Court, testified that one of them resided in England, both were English ladies, and were, at the time of the execution of the codicil, living temporarily at the same house where testatrix was, and that she, the sister, never had any reason to suppose that they would visit this country. This sister testified' as to the execution of the codicil; that she was present-that, testatrix drew the same; that, she, at the. request of testatrix,, called the witnesses- in; that after they came testatrix drew the attestation clause and told the witnesses she would like to have them he witnesses to the codicil which she had just drawnthat she handed, the codicil-to the witnesses, and -they at Once, in her presence and-' in the, presence of each other, signed as such witnesses. Then'the papers were sealed and given to witness, the sister, and she kept them till after the testatrix died. Upon this evidence the probate was granted.

• If' the petitioner, here had in timé become a party to the proceeding and taken an appeal as permitted by the Code of Civil Procedure, the decree of the surrogate would very likely have been reversed and a rehearing granted for want of adequate, proof of the execution of the codicil. If the case were a proper one for an action under section 2653a, and the, action had been commenced in time, the petitioner might have secured any rights she was entitled to therein. Both these remedies were, however, barred by the limitations of the statute when this proceeding w.as commenced. There was rio limitation to the remedy, if- any existed, under this statute, in question. ' (Matter of Henderson, 157 N. Y. 423, and the cases therein referred to,)-

But the difficulty is that the statute does not seem to afford the petitioner any relief under the facts of this case. Whether, the codicil was properly-signed by the testatrix,, under the circumstances,, was a disputed question of law aiid fact. Whether the proof of the absence of the witnesses from the State was sufficient to excuse their production as witnesses was a question of fact. Whether the evidence of the sister ,was sufficient to establish, a proper execution of the codicil was a question of fact. All these questions were, for the Surrogate’s Court to decide. .And while its decision as to any or all of them may have been so .erroneous that the court on appeal would have reversed the decree arid granted a new trial-, still for such error appeal, was the proper remedy. This proceeding is not the proper remedy,, and no relief can be granted herein.

The proceeding cannot be used as a means of reviewing the decree of the Surrogate’s Court for. errors of judgment as to qtiesL. tians of law or fact.. ,Such errors can .be corrected only by appeal.

We have examined the cases cited by counsel, bearing upon the subject. We do not think it necessary to analyze or discuss them here. Our conclusion is that the decision of the Surrogate’s Court denying the application should not be disturbed by us.

All concurred, except Kruse, J., who dissented in an opinion.

Kruse, J. (dissenting):

Emily L. Gaffney died leaving a last will and testament of both real and personal property. She bequeathed all of her property to a trustee, which involved converting the real estate into personal property, directing the trustee to dispose of the income and principal as stated in the will. Flora Gaffney, the appellant' petitioner, was made a beneficiary under the original will. She was cut off by the subsequent codicil, if it was valid, but she claims that the codicil was ' never executed by the testatrix in the manner which the law requires.

The codicil was probated before the surrogate of Monroe county December 12, 1903, but Flora Gaffney was not cited or in any way made a party to the proceeding, nor was she a necessary party to the proceeding if the codicil is valid, for in that case she is not interested in the estate, since the codicil eliminated her as a beneficiary, and she was not an heir at law or next of kin of the testatrix. She was unaware of the original will or that she was interested in the testatrix’s estate, in any way until after her time had expired in which to present a petition for a revocation of the pro•bate, as is provided by section 2647 of the Code of Civil Procedure and the other sections contained in. the article embracing that section, or within which to appeal under sections 2569 and 2572 of the Code of Civil Procedure. The time for bringing an action for determining the validity of the codicil under section 2653a of the Code of Civil Procedure had likewise expired, even if it be assumed that such an action would, have been available to her.

The effect of a surrogate’s decree" admitting a will to probate as to real property establishes presumptively only the matters determined by the surrogate, as against a party duly cited or a person claiming from, to or tinder him. (Code Civ. Proc. § 2627.) But as to personal property, it is an adjudication upon all questions determined by the surrogate until it is reversed upon appeal or revoked by the surrogate, except in a single instance mentioned in section 2624 of the Code of Civil Procedure, and which has no relatian to any question now being considered. (Code Civ.' Proc. § 2626.) . As is stated by Judge Gray in Hoyt v. Hoyt (112 N. Y. 504): - “As to the personal property, if the persoh interested • is not under disability, or the surrogate’s discretion is not invoiced for a sufficient cause, under subdivision 6 of section 2481', the probate concludes all mankind after the lapse of one year. In such event the disposition and 'distribution of the personalty by the- executor are beyond question or recall, an.d a finality. The proceeding for the probate is in tlie nature of a proceeding in rein, which is binding upon all parties who are- entitled to participate and are brought in by due process of law.”

And such a decree as to personal property is conclusive, not only upon the persons cited, but also as to a person not cited or not appearing, if the statute does not require citations to be served upon ' such a one. (Matter of Wohlgemuth, 110 App. Div. 644.) Hor can a person maintain an action in equity to be relieved from the effect of such a decree and have a retrial and secure relief from an unjust decree, although he-may not have known of the proceeding, or that he was interested in the estate until after the proceeding was terminated and the adjudication made, and his failure to appear be entirely excusable. (Booth v. Kitchen, 7 Hun, 255.)

The .only remedy suggested for her relief from the decree admitting the codicil to probate is under the provisions of section 2481 of the Code of Civil Procedure. That relief .she sought to invoke, presenting her petition and affidavits to the surrogate who admitted the codicil, to probate, which tended'to show the invalidity of the codicil and the lack of knowledge or information upon her part of the original will and of her interest therein, as before stated. But the surrogate refused to open the decree, and denied her application to grant a rehearing or permit her to contest the validity of the codicil. His decision does not seem to be based upon the ground." that the petitioner does not make out a case which, in the exercise of his discretion, entitles her to relief, but upon the ground of a want of power" to afford, her the relief. And a majority of this court seem to entertain the same view..

If it. be the law that such a condition brought about by circum-, stances,such as are here disclosed cannot be remedied, it is not difficult to see that causes may arise where gross injustice will be done. Whether this case is of that character in its consequences if this petitioner is not entitled to the relief she asks cannot, of course, be definitely known now. The petitioner so asserts, and she has never had her day in court. That she ought to' have, unless the law is such as now to leave her remediless.

It does not seem to me that the law is so inadequate and a surrogate so powerless as to afford no relief to a party in the situation that the petitioner finds herself.

Although it was unnecessary to cite the petitioner upon the probate proceeding for proving the -codicil, as has been shown, yet provision has been made in the statute for permitting her to appear upon the proceeding and contest the same. Section 2617 of the Code of Civil Procedure permits a legatee, although not" cited, -who is named in the will propounded, or in any other 'paper purporting to be the will of a decedent, to appear and. con test the will offered for probate. She could have availed herself of this provision had she known of the proceeding and of her interest in the estate.

Section 2181 of the Code of Civil Procedure, which -has already been referred to, states the incidental powers of the surrogate. I quote two subdivisions from that section :

“ 6. To open, vacate, modify or set aside, or- to enter, as of a former time, a decree or order of his court, or to grant a new trial or a new hearing for fraud, newly-discovered evidence, clerical error or other sufficient cause. The powers conferred by this subdivision must be exercised, only in a like case, and in the same manner as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application, pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate ; and his determination must be reviewed, as if an original application was made to that term.”

11. With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, having, by the common law, jurisdiction of such matters, except as othérwise prescribed by statute; and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.”

Assuming that the appellant is bound by the decree, which does not seem to be disputed, her position ought to be regarded with as much favor by the courts as though she had been, served, and through some excusable fault had failed to appear. Her present situation in hot having had an opportunity to present her claims in court lias not. '.arisen through, her fault. ■ Had she been cited and made default, arid presented as good an excuse as she now makes for not appearing, in view. of. thé fact that she has no other remedy, the court' would not hesitate to relieve her from her default, I think her position is precisely the same now. ,

Long before these' sections were enacted, the Surrogates’ Courts in this State exercised the right to correct mistakes of the character set forth in' section 2481,.and opened their decrees and permitted a party' similarly' situated as the petitioner to appear artel have a. rehearing, although for a time they were hampered by an express provision, contained,in the Revised Statutes, providing, that no surrogate should,.under pretext of iricidental power or Constructive authority, exercise any jurisdiction whatever not expressly given by some statute of the State. (2 R.. S, 220, § !.)"■

But this provision was repealed in 1837 and the effect thereof is' . commented upon in Sipperly v. Baucus (24 N. Y. 46) where it was held that the surrogate had power to open a decree on the final accounting of an adrniriistrator and to require a further accounting, ■ although a period of four years had elapsed "since the’making of the original'decree.

In Pew v. Hastings (1 Barb. Ch. 452) it was held that'the surrogate had the power to open a decree taken by default through a mistake or an accident. Chancellor Walworth said that the powers of the surrogate were derived originally from those .of the ecclesiastical courts, of England in testamentary matters,'-which courts had the ordinary incidental powers of the Court of Chancery and' the courts of common law in regulating proceedings 'before them so; as to prevent a failure of - justice ip consequence of mistakes and accidents. He states the question' thus: “ The question here is not' whether .a surrogate, who has heard and decided a case upon the merits, has the power to grant a rehearing so as to give one -of the< parties the benefit of a reargument or the right to bring forward new evidence to sustain his side of the case, but whether he. haá the power to open a decree taken, by default in consequence of a mistake or accident by which one of the parties has been deprived of any hearing whatever. This last power is one which is absolutely essential to the due administration of justice, as defaults of the kind referred to must frequently occur where no human foresight could have anticipated and guarded against the event by which the default was occasioned. I think, therefore, the surrogate erred in this case in supposing that he had not the power to open the decree which had been taken by default.”'

In Campbell v. Logan (2 Bradf. 90), decided in 1852, it appeared that a will of a later date than the one which had been proved w'as offered for probate. The objection was made that the decree admitting the fh'st will to probate was conclusive as to the validity of that wilL All of the parties had been cited, and it was held that the objection was well taken unless the surrogate had the power to revoke or modify the first probate. It was there stated that the statute had provided means of enabling the next of kin of a testator within a year after the probate to file proper allegations to compel the executors to prove the will anew, but that no provision had been made for revoking the probate of a will where another and later will is subsequently found, and unless a remedy existed beyond the express provisions of the statute, persons might be deprived of their rights without notice and without fault or negligence. The learned surrogate said : “ If the surrogate has no authority to open a decree for the purpose of correcting a mistake or to let in the proof of a revocation, or a later will — if the moment a decree of probate is passed the door is closed and the act is irrevocable, notwithstanding the discovery of circumstances showing the probate to be erroneous, then it is evident that justice may be sacrificed to the forms of proceeding.” And it was held that the surrogate had such power.

It has also been decided in other jurisdictions that courts of probate have power as incidental to the proper, discharge of their duties to revoke the probate of a will upon the. discovery of a later will. (Gaines v. Hennen, 65 U. S. 567; Waters v. Stickney, 12 Allen 1; 90 Am. Dec. 122; Vance v. Upson, 64 Tex. 266.) While this is not .a case of the discovery of a later will, it would seem to he the same in principle. While the original will is not older in point of time than the codicil purports to be, yet, if the codicil is invalid then it is not the- will of the testatrix at all, and the original will is her last will.

While no case has been called to my attention, and I have- failed, to find any, precisely the same in its facts as the one at bar, questions of a similar nature have been before our courts and the provisions of section 2481 considered, and the power thereby conferred upon the surrogate passed upon. "

In Matter of Flynn (136 N. Y. 287) the broad statement is made that the “ surrogate has the power óf a court, of general jurisdiction to vacate his decrees (§ 2481, sub. 6), and relief may .be granted as in the Supreme Court upon -the application of any one for sufficient reason in furtherance of justice.’’’

In Matter of Henderson (157 N. Y. 423) it was held that the two years’ limitation contained in section-1290 of the Code of Civil Procedure for setting aside a final judgment upon grounds and under conditions therein stated did not apply to applications in the Surrogate’s Court, made under section 2481 of the Code. Judge O’Brien, after- referring to the informality with which cases in Surrogates’ Courts are frequently decided without the aid of counsel, stat.ed that a Court charged with such powers and duties should have ample authority over its own recprds for correcting mistakes such as appeared in that case. And in referring to the cases of Matter of Tilden (98 N. Y. 434) and Matter of Hawley (100 id. 206) said that those decisions were doubtless correct, whatever might be said with respect to - some of the - reasons given ; for in those cases no error was attempted to be corrected such-as is contemplated by section 2481, but errors of substance made at the hearing, which- should, have been corrected by appeal and not by motion.

In Matter of Tilden (56 App. Div. 277), ivhich was a controversy arising out of the same estate as the "case by the same title above referred to decided in the Court of Appeals (98 N. Y. 434), but not presenting the same question, it appeared that a will and codicil were offered for probate. The surrogate refused to admit the codicil to probate-. After the decree had been made, but before the time' to appeal had expired, a party interested in the codicil made a petition to open the decree which denied probate to the codicil. The surrogate ref used to open the decree, and the Appellate Division unanimously affirmed the order, a majority of the members of the court being of the opinion that the discretion was properly exercised; that the right o^f appeal' was still available to the aggrieved party, the time to appeal not having expired, and that there was no necessity for making a motion under section 2481 of the Code of Civil Procedure to protect the rights of the aggrieved party; that upon such an appeal the Appellate Division had power to take further testimony upon the validity of the codicil. (§ 2586.) Two members of the court placed the affirmance of the order upon the ground that the surrogate had no power to set aside the decree for the purpose of allowing one not a party to the proceeding to come in and introduce evidence as to the validity of the codicil; that the aggrieved party, not being a party to the proceeding originally, was not bound by that part of the decree which rejected the probate, since Section 2626 of the Code only provided for the effect to be given to a decree admitting the will to probate, and that there was no provision which makes a decree refusing to admit a will to probate binding upon any one not a party to the proceeding; that even if the aggrieved party had knowledge of the existence of the codicil, it was not bound to appear and become a party to the proceeding, or to be bound by the decree; that under section 2614 of the Code of Civil Procedure it could present the codicil at any time for probate, and have the question of its proper execution and validity determined.

In Hoyt v. Hoyt (112 N. Y. 493) a proceeding was brought to revoke the probate of a will under section 2647 of the Code of Civil Procedure, which application, was denied by the surrogate. After the case had reached the Court of Appeals it was contended that the nature of the proceeding was such as to bring it within the provisions of section 2481 of the Code of Civil Procedure, and, therefore, the surrogate’s decree confirming the' probate was unauthorized ; and the Court of Appeals held that the record clearly showed that the proceeding was the ordinary one for the revocation of a probate under section 2647. In addition to the challenging of the validity of the will it was there claimed that the petitioner, who was the only daughter of the testator, although served with a citation, had been unjustly taken into custody under the claim that'she was insane, and had not been permitted to appear on the hearing, while in fact sh'e was of sound mind. The court held that she had waived this claim, since she had proceeded upon the hearing before the surrogate upon the merits, and that in any event she had' accomplished by having a hearing upon thp merits what she was entitled to if she had established the claim that she had been unjustly' prevented from appearing on the original hearing..

The court in its opinion, referring to her .claim, said that her allegations if substantiated by the proofs would be ample ^warrant for the surrogate whose process had ffieen interfered with to open up the case, again for the reception of the proofs offered by the ; that clearly under his incidental powers at any time on such a showing he-could do that; that while under such circumstances the surrogate would nevertheless obtain jurisdiction to make the decree, yet for thé failure to be heard therein the surrogate is empowered to grant relief by a rehearing to the party deprived thereof.

I deem it ünneceesai'y to prolong the dis~nssion of ±hese~ qtlestions; I tTiink upon rQason and authority the sur~oga~ 1i~d powei~ to open the decrce~ admitting to probate th~ codicil a~d allow the petitioner to contest the validity of it, and if the petitioner wa~ zuccessful, to admit to probate the oj~i~ina1 will.

Whether she would ultimately succeed is not now before us for a decision. I think a casé is made sufficient to warrant a rehearing, before the surrogate, and that the order, appealed from should be reversed and the motion granted.

■ Order and decree affirmed, with costs.  