
    MATTER OF PATTERSON.
    
      N. Y. Surrogate's Court ;
    November, 1889.
    
      Stay of probate proceedings.] It depends upon the exercise of the sound discretion of a surrogate whether or not proceedings pending before him for the probate of a will shall be stayed until the determination of an action in the supreme court to have another will, previously admitted to probate, declared to be the “ true, lawful and only will and testament ” of the testator. It is the duty of the surrogate to proceed independently, and the rights of persons interested thereunder are usually for subsequent consideration. •
    Motion to have proceedings for the probate of will stayed.
    
      The testator, John Patterson, died on April 21, 1888. Thereafter an instrument purporting to be the last will and testament of the deceased, dated April 18,1888, was presented by the executors thereof, Daniel Paxton and John B. Hackett, to the surrogate’s court for probate, and the same was duly admitted to probate. A proceeding was then brought by one George W. Patterson to revoke the probate of such will, and a petition made by him to have another will, dated April 19, 1888, admitted to probate. These proceedings were afterward abandoned, and Patterson accepted-a legacy under the probated will; but soon after he filed another petition for the probate of the will of April 19, and the proceeding is now on the calendar indisposed of.
    Subsequently an action was begun by the executors of the probated will in the supreme court to have that will declared “the true, lawful and only will and testament ” of the testator, and this motion was made by them to have the-proceedings for the probate of the will of April 19, stayed until the determination of such action.
    
      Boorman, Hamilton & Beckett, for the contestants and the motion.
    
      Henry Hoyt, for the proponent, opposed.
   Ransom, S.

Whether the petitioner for the probate of the paper of April 19, 1888, is precluded by his own acts from taking any benefits thereunder need not now be determined. Whether the supreme court has jurisdiction of the action now pending therein, brought to have the will of April 18, 1888, declared the “ true, lawful and only will and testament ” of decedent, it is not necessary for me to decide..

The suggestion I make for the consideration of counsel,, that the surrogate’s court has exclusive jurisdiction to grant or deny probate of wills, need not be regarded by me at this-time. I have not been furnished with the complaint in the action in the supreme court, but no doubt the cause of action in that suit is substantially set forth in the affidavit upon which the order to show cause herein was granted. It would seem to be the object and purpose of that action to-have the paper of April 19th, 1888, declared to be invalid as a will, and the paper of April 18th, 1888, which has-already been admitted to probate as the last will and testament of the decendent, declared to be his true, lawful, and only will and testament.”

The paper of April 19th, 1888, is in form a valid will. Proceedings have been duly commenced to procure its-admission to probate which are now sought to be stayed by the executors (contestants) of the will of April 18th, 1888,. pending the determination of the action in the supreme • court. Whether in the exercise of sound discretion I should grant the stay is the only question to be decided at this time. If the answer to that question depended upon the facts disclosed as to the conduct of the petitioner for the - probate of the paper of April 19th, 1888, I should not hesitate to grant it, but the rights of others interested in this estate must be regarded.

The paper now offered for probate, having been filed with the surrogate and proceedings commenced therefor,, neither discontinuance thereof nor a stay can be granted at the instance of any one of the parties in interest. It is the-duty of the surrogate to proceed in the matter independently. Section 2622, Code of Civil Procedure, provides that. he shall “ inquire particularly into all facts and circumstances - and satisfy himself of the genuineness of the will and the validity of its execution.” And if thus satisfied it is his ■ duty to admit it to probate. The rights of persons interested thereunder are usually for subsequent consideration. I have^ therefore determined that this motion must be denied.  