
    In the Matter of the Revocation of the Probate of Will of Valentine Liddington, Deceased.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1889.)
    
    1. Wills—Revocation of fbóbate—Code Civ. Peo., §§ 2647, 2652.
    Ii, in a proceeding for the revocation of a will, it shall appear that the will was not properly executed, or that the testator was not, in all respects, competent to make a will or was under restraint, the court must make a decree revoking the probate thereof. And in such a proceeding, wliere the allegations are sufficient to question the validity of the will, it must be proved de nova.
    
    2. Appeal—Objection not raised below.
    A claim that the petitioner has no pecuniary interest in the estate, and hence could not institute the proceeding, cannot be successfully raised for the first time on an appeal to the general term.
    3. Practice—Admission op parties.
    Where a petition was filed within the time fixed by statute, parties may be admitted to the proceeding after that time has elapsed.
    Appeal from a decree of the surrogate’s court of Tompkins county, revoking the probate of the will of Valentine Liddington and codicil thereto, so far as they relate to the personal estate of the deceásed, and revoking letters testamentary issued thereon to the appellant, as to such personal estate. The case upon which this appeal was heard contained all the evidence.
    
      Mynderse Van Gleef,, for app’lt;- Simeon Smith, for resp’ts.
   Martin, J.

On March 24, 1884, Valentine Liddington died at the town of Caroline in Tompkins county, leaving what purported to be his last will and testament and a codicil thereto. The will was claimed to have been inadé January-20, 1881, and the codicil February 23, 1884.

By this will the testator’s wife was given the net income* of ail his estate during the term of her natural life, and if insufficient for her maintenance and support, his executor was authorized to use such of the principal as he deemed necessary for- that purpose. 'Valentine Liddington, a nephew, was given ninety-six acres of land, such gift to take effect upon the death of the testator’s widow, and upon this land was charged the payment of certain legacies amounting to about $700, which were payable at her death; certain1 small legacies were then given amounting to but a few hundred dollars; and the rest, residue and remainder of the testator’s estate was given to Charles D. Nixon, who was made the executor of, and trustee under, said will, with’ full power to sell all the real and personal estate of which such testator died seized, except- said ninety-six acres devised to Valentine, provided he should pay the charges thereon and convert the same into money and invest the same in any securities he might think proper wherever they might be taken, giving him full and unlimited control and discretion as to any and all investments, and providing that he should not be liable for any loss therefrom except for wilful and gross negligence.

By the codicil, that portion of the ninety-six acres of land mentioned in the will which lay north of a certain road, except so much as was purchased of Thomas Woodruff by the testator, was given to Frederick Liddington, subject to the charges and liens thereon mentioned in said will, and all of the ninety-six acres lying southerly of such road and all of the Woodruff farm north of such highway was given to Valentine Liddington, subject to the charges thereon in the will provided for, and the codicil then provided that such charges and liens should be paid equally by Frederick and Valentine. The testator then revoked the most of tire legacies given by his will and provided that they should remain a charge upon.such land and “go” to his said residuary legatee.

The testator left him surviving a widow, but no child or children or descendants thereof. His heirs and next of kin were F. ‘G. Liddington, Valentine Liddington, Fannie English, Pbebe Payne, Helen Strong, and Mary A. Gar noung, who were his nephews and nieces.

After the death of .such testator, and on October 9, 1884, the will and codicil were admitted to probate by the surrogate’s court of Tompkins county without objection, on the petition of Charles D. Nixon, the executor, trustee and residuary legatee named therein, and letters testamentary were issued to him.

On October 6, 1885, and-within one-year after the will and codicil were admitted to probate, a petition, duly made and verified, by Frederick- Liddington and Valentine Liddington, was presented to the surrogate’s court of that county asking that said Nixon and all persons interested in said probate should be cited to appear and- show cause why the probate of said will should not be revoked. Citations for that purpose were duly issued to such executor and certain other parties interested in such probate, but none were issued to said Mary A. Ganoung or Phebe Payne. They, however, subsequently appeared and asked to be, and were, admitted as parties to this proceeding. A. trial' was then had before the surrogate’s court and resulted in the decree appealed from..

On the trial the court found: “That for the three years and upwards before his death said • Liddington (the testator) was subject to sick spells, occurring more or less- frequently and lasting from a half hour to several hours duration,, and during which he wandered in his mind and did not know the attendants who surrounded him. He finally died in one of these so called “spells;” that for five years and upwards before his death the deceased was afflicted with deafness, impaired eyesight and a memory so poor that at times he did not know his near neighbors or friends whom he had been acquainted with for many years; that at the time said will and codicil were executed said testator had upon him the infirmities of mind and body incident to extreme old age, and was in a condition to be easily influenced by those surrounding him and in whom he had confidence. Said will and codicil were drawn by Charles D. Nixon, a lawyer, who had for a number of years been the legal and confidential adviser of the deceased. He was a nephew also of the testator’s wife, but of no blood relation to the testator.

Said will and codicil were not in accordance with the testator’s previous expressed intentions as to the manner in which he should dispose of his property, nor in harmony with his statements as to how he had disposed of the same after he had executed said will and codicil. There is no evidence that said testator knew the contents of said will and codicil at the time he executed them; there is no evidence that he ever read them or had them read to him before their execution.”

The surrogate declined to find that at the time of the execution of said last will and testatment, or of the codicil thereto, that said Valentine Liddington was of sound mind and memory, and not under any restraint or undue influence, or that he acted freely and naturally, and had testamentary capacity, and refused to hold that the said Valentine Paddington was competent to make a last will and testament on the 20th day of January, 1881, or that he was competent to make a last will and testament on the 23d day of February, 1884, or that said will or. codicil were valid and legal instruments.

We think that the surrogate’s court was justified by the evidence in finding the facts found by it, and in declining to find as requested by the appellant. But the appellant contends that the facts found, did not justify the decree appealed from. The statute under which this proceeding was instituted, provides: “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.” Code Civil Procedure, section 2652. In a proceeding like this, where the allegations are sufficient to question the validity of the will, the executor, or those interested against the allegation, must prove the will de nova, the probate is of no force in a proceeding instituted to directly impeach the probate itself. Collier v. Idley, 1 Bradf., 94; Hoyt v. Hoyt, 9 N. Y. State Rep., 740; Cooper v. Benedict, 3 Dem., 136; Matter of Gouraud, 95 N. Y., 256.

So that the questions before the surrogate’s court were the same as though this had been a proceeding to prove the will and codicil in the first instance. In such a proceeding, if it appear to the surrogate that the will was duly, executed, and that the testator at the time of executing it, was in aÉ respects competent to make a will, and not under restraint, it must be admitted to probate. Code Civ. Pro., § 2653.

But if, upon all the evidence, the surrogate is not satisfied that the will was properly executed, or- that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint, then the court is bound to pronounce its opinion that the instrument is not entitled to probate. Delafield v. Parish, 25 N. Y., 34; Cooper v. Benedict, 3 Dem., 136-7; Lee v. Dill, 11 Abb. Pr., 214; Van Pelt v. Van Pelt, 30 Barb., 134; Matter of Clausmann, 5 N. Y. State Rep., 329; Matter of Page, 62 Barb., 476; Forman v. Smith, 7 Lans., 443.

Assuming the facts as found, and it can readily be understood how the surrogate might not have been satisfied that this will was properly executed, or that the testator was -in all respects competent and free from restraint. The testator was upwards of ninety-two years of age when the codicil was made. He was and had been subject to periodical attacks, during which his mind wandered and he failed to recognize those around him. He was deaf. His eyesight was impaired, and he had a memory so poor that at times-he did not know his near neighbors and friends. When those instruments were executed he was in a condition to be easily influenced by those around him. They were prepared by the appellant, who was his legal and confidential adviser, and who, although not a relative, was made the executor, trustee and residuary legatee under said will and codicil. . .

The will and codicil were not in harmony with the testator’s expressions of his intended disposition-of his estate, nor with his statements after they were made, as to the disposition he had made of it. Neither was there any evidence that he knew the contents of either the will or the codicil; it was not shown that either was read by him or read to him. We think these facts, under the legal rules applicable in such a proceeding, fully justified the learned surrogate in revoking the probate of said will and codicil.

The appellant now claims that the petitioners had no-pecuniary interest in the testator’s estate, and hence, could not properly institute these proceedings. The appeal book fails to show that any such question was raised in the court below. We, therefore, think it unnecessary to consider that question further than to say that it cannot be successfully raised here for-the first time.

It is also contended by the appellant that the surrogate’s court erred in permitting Phebe Payne and Mary A, Ganoung to be made parties to this proceeding after more than one year had elapsed from the time when such will and codicil had been admitted to probate. We do not think so.

In the Matter of Gouraud (95 N. Y., 256), it was held that to bring a case within the limit fixed by the statute it was sufficient if the requisite petition was filed within the year. We think the principle of that case decisive of the question. There are no other questions raised by the appellant which seem to require consideration. We are of the opinion that the decree appealed from should be affirmed.

Decree affirmed with costs of this appeal against the executor personally.

Bollett, P. J., and Kennedy, J., concur.  