
    Matter of the Probate of the Alleged Last Will and Testament of Frances Anna Essig, Deceased.
    (Surrogate’s Court, Kings County,
    June, 1909.)
    Surrogate’s Court — Procedure and review — Orders and decrees — Operation as bar or as conclusive evidence—Probate and revocation oí probate — Hot conclusive on application for probate of another paper executed about same time.
    The adjudication that one of two papers made within a few minutes of each other should not be admitted to probate as the will of the person subscribing it does not constitute a former adjudication of the question of admitting the other paper to probate.
    Proceeding upon the probate of a will.
    Peter J. McGoldrick (Bruce R. Duncan, of counsel), for proponents.
    Henry T. Hooker, for contestants.
   Ketcham, S.

Motion that probate be refused is denied. The findings and decree in the proceeding brought for the probate of a paper other than the one now propounded do not constitute a former adjudication.

True, the two papers were made within a few minutes of each other, and it is a stretch of one’s credulity to believe that the earlier one was safe from the circumstances which destroyed the second. But the determination as to the second was not a determination as to the other. It could not be, and the findings, so far as they contain a conclusion that the paper not offered for probate in the former proceeding was void, were unnecessary to the decision.

“A judgment is conclusive upon the parties thereto only in respect to the grounds covered by it, and the law and facts necessary to uphold it; and, although a decree, in express terms, purports to affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference thereto.” Woodgate v. Fleet, 44 N. Y. 1.

Decreed accordingly.  