
    Daniel Paxton et al., Individually and as Executors, App’lts, v. Eliza Brogan, Impl’d, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Will—Probate—Injunction.
    It is the right of all persons interested in the estate under a will that the instrument shall he proved, and they cannot he deprived of that right by reason of any preceding act of the person named as executor.
    2. Same.
    The testator left two wills, the first of which was admitted to probate. The person named as executor in the second will was the residuary legatee in both, and has received part of the estate under the first will. Held. that this fact did not affect the other legatees under the second will, and it was the duty of the executor named therein to present it for probate for their benefit, and, therefore, that an action could not he maintained to restrain such proceedings for probate on that ground.
    
      Appeal from an interlocutory judgment sustaining a demurrer to the complaint.
    
      William H. Hamilton, for app’lts; Wm. G. Choate, for resp’t.
   Daniels, J.

John Patterson at the time of his decease left two instruments executed as his last wills. The first is dated on the 18th of April, 1888, and the last on the following day. The first has been admitted to probate by,the surrogate of the county of New York, and letters testamentary issued ■ to the plaintiffs, who are the executors named in that will. The second has been presented for probate by the defendant George W. Patterson, one of the executors named therein, and he has also applied- for the revocation of the probate of the preceding instrument This action has been brought to restrain those proceedings for the reason that the defendant George W. Patterson, who. is named as residuary devisee and legatee in both instruments, has received part of the estate, together with other benefits, under the first will. The defendant Eliza Brogan, who is a legatee, has demurred to the complaint, assigning as one of the grounds for her demurrer that the complaint fails to state facts to .present a cause of action.

This defendant, as well as other persons, are entitled to legacies under the will proposed to be proved. And as the principle invoked by the complaint has no application to them, it was the duty of the defendant named as executor to present the instrument for probate for their benefit, and to prove and establish it as a will, if that can be done.

To the surrogate also the jurisdiction has been given to take proof of the instrument as a will, and this jurisdiction is in its nature exclusive. ' It is the right of all persons interested in the estate that the instrument shall be proved, and they cannot be deprived of that right by reason of any preceding act of the person named as an executor. And, when the proper proof has been given, it is imperative on, the surrogate that the instrument must be admitted and established as a will. Code Civ. Pro., §§ 2472, 2614 and 2623. While the principle relied upon to support the action is extremely well settled, it has no application to the proceeding taken for the proof of this will. And if it shall be proved, then it necessarily will supersede the proof of the preceding will, and annul the letters issued under it to the plaintiffs as executors. The action is wholly without support, there being nothing sustaining it even in Matter of Soule, 19 N. Y. State Rep., 533, and the judgment should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.  