
    (63 Misc. Rep. 612.)
    In re ESSIG’S WILL.
    (Surrogate’s Court, Kings County.
    June, 1909.)
    Wills (§ 431)—Refusal of Probate—Res Judicata.
    An 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 is not res judicata of the admissibility to probate of the other paper.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. § 922; Dec. Dig. § 431.]
    Application for probate of the last will of Frances Anna Essig. Motion for denial of probate.
    Denied.
    See, also, 127 App. Div. 920, 111 N. Y. Supp. 1118.
    Peter J. McGoldrick (Bruce R. Duncan, of counsel), for proponents.
    Henry T. Hooker, for contestants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   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 deter.mination 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.  