
    In the Matter of the Probate of the Alleged Last Will and Testament, etc., of Lyman Soule, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1887.)
    
    1. Practice—Surrogate’s court—Right and duty op Surrogate to amend citation, Code Civil Pro., §§ 723 and 2538.
    A petition setting out the alleged facts which were claimed to show tho certain papers alleged to he the last will and codicils thereto of the de ceased, were not his last will was presented to the surrogate of Cayuga county. Thereupon the surrogate of said county, issued a citation to the individuals named in said petition as interested, which was duly served on all the persons named therein, but the citation failed to contain the names of the executors as such, although their names were first given in the citation, and again appear among the list of persons entitled to notice. On the return day the surrogate denied a motion of the persons who were executors to dismiss the petition, on the ground that they had not been served as executors, and he allowed the. citation to be amended by adding to the names of the executors their representative character. Held, that the surrogate had power to amend under Code Civil Pro., §§ 723 and 2538. That under the circumstances it was his duty to do so.
    2. Same—What obdeks appealable—Code Civil Pbo. § 2570.
    The order was not appealable under Code Civil Pro., § 2570, as it did not affect a substantial right.
    8. Same—Recitals in decbee—When fabty estopped by—Code Civil Pbo., §§ 2647, 2651 and 2652.
    The decree admitting the will to probate contained a recital to the effect that the petitioner herein appeared by counsel and consented thereto. Held, that the recitals in the decree axe prima facie evidence of the facts recited, but that the petitioner had the right to show the existence of facts whi h would relieve her from any claim that she was barred or estopped from maintaining the proceedings.
    Appeal from an order of the surrogate’s court of Cayuga county denying a motion to dismiss proceedings to revoke the probate of the will of Lyman Soule, deceased.
    
      H. W. Howland, W. E. Hughitt and M. A. Knapp, for app’lts; W. B. Woodin, for resp’t.
   Haight, J.

On the 25th day of March, 1887, Cynthia D. Rood presented a petition to the surrogate’s court of Cayuga county, showing that on the 28th day of June, 1886, certain paper writings were admitted to probate by that court as the last will and testament, and codicils attached, of Lyman Soule, deceased; that such paper writings were not the last will and testament and codicils of the deceased; that they were not signed by him; that he was not of sound mind and memory or capable of making a will at the time they were signed; that the execution of them was procured by fraud and circumvention and undue influence practiced upon the deceased by certain parties named; that the subscription and publication thereof were procured by fraud and coercion, and that the papers had been changed and altered since they were executed, etc., and prayed for a decree revoking the probate, and for such other and further relief as may be just, and that the executors, devisees and legatees, and persons who were parties to the proceedings in which the probate was granted, be cited to show cause why the probate should not be revoked. Thereupon the surrogate issued a citation to the individuals named who were duly served, but the citation failed to contain the names of the executors as such, although their names are first given in the citation and again appear among the list of persons entitled to notice. On the return day of the citation the executors appeared by attorney solely as legatees under the will and codicils, for the sole purpose of making a motion to dismiss the petition upon the ground that they had not been served as executors, and upon the further ground that it appears by the recital in the decree of the surrogate admitting the will to probate, that the petitioner appeared by counsel in such proceedings and consented that the same be admitted to probate. The surrogate denied the motion to dismiss the proceedings, and from that order this appeal was taken.

We have examined the question upon the merits and we fully agree with the surrogate that he has the power, and under the circumstances it is his duty to amend the citation by adding to the names of the executors their representative character.

The fact that their names twice appear among the list of persons to be cited as is stated by the surrogate, indicates that the omission of the words indicating their representative character was Clerical and a mistake. The individuals .who are executors were in fact served, and they are consequently deprived of no substantial right, and it seems to us clear that the power to amend is given by section 723 of the Code, which is expressly made applicable to proceedings in surrogate’s courts section 2538. The Bank of Havana v. Magee, 20 N. Y., 355; Risley v. Wightman, 13 Hun, 163; Tighe v. Pope, 16 id., 180; N. Y. S. Monitor Milk Pan Co. (Limited) v. The Remington Agricultural Works, 89 N. Y., 22.

It is contended that the recital in the decree admitting the will to probate, to the effect that the petitioner appeared by counsel and consented thereto, is conclusive evidence of the facts recited and that the petitioner is now barred or estopped from maintaining those proceedings by reason thereof. But we cannot assent to this proposition. Section 2647 of the Code gives to the person interested in the estate the right, within one year after probate, to petition that the probate be revoked. If the recital in the decree is conclusive evidence of the fact recited, then any clerical error or mistake that may be made in drafting recitals, or fraud practiced, will cut off an heir at law from the right given by the Code to have the probate revoked. Section 2651 provides that upon the return of the citation the surrogate must proceed to hear the allegations and proofs of the parties, and section 2652 if the surrogate decides that the will is not sufficiently proved to be the last will of the testator or is for any reason invalid, he must make a decree revoking the probate thereof, otherwise he must make a decree confirming the probate. " Under these provisions the parties have the right to give evidence before the surrogate. The recitals in the decree may be, doubtless are, prima facie evidence of the facts recited, but we apprehend that the petitioner has the right to show the existence of facts which will relieve her from any claim that she is barred or estopped from maintaining the proceedings.

But we are of the opinion that this order is not appeal-able. The revisor says in his note to the article upon appeals from decrees and orders of the surrogate, that the practice is assimilated so far as possible to those of actions m civil cases.

Section 2570 provides that “An appeal to the supreme court may be taken from the degree of a surrogate’s court, or from an order affecting a substantial right made by a surrogate or by a surrogate’s court in a special proceeding pending in that court or after a decree in such a special proceeding.”

Section 2571 provides that an appeal taken from a decree brings up" for review each intermediate order which is specified in the notice of appeal, etc.

No final decree has been reached in the proceedings to revoke the probate. The order appealed from merely denies the motion to dismiss. No costs were imposed or other right of the appellants affected. It may turn out upon the hearing that the surrogate will affirm the probate and thus do away with any necessity to review this order. If the motion to dismiss the proceedings is an appealable order in one case it must be in another. If at the beginning of the hearing the motion can be made and the order appealed from, a like appeal can be taken from an order denying a motion to dismiss upon the ground that the evidence is not sufficient to order a revocation of the probate after the petitioner has rested, or this practice being assimilated to that of civil cases, in a case upon trial at circuit, every motion made for a nonsuit or dismissal of the complaint and refused would be an appealable order. Such is not the law. An order to be appealable must affect a substantial right. No substantial right of the appellants has thus far been affected.

The appeal should therefore be dismissed, with ten dollars costs and disbursements.

Barker and Bradley, JJ., concur.  