
    In the Matter of the Probate of the Will of Patrick Donlon, Deceased.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Will—Probate—Opening decree.
    Probate of a will relating solely to real estate cannot be revoked by the surrogate under the provisions of §§ 2647, 2648 of the Code, as those sections only relate to wills of personal property.
    2. Same.
    A service of citations upon a person conceitedly non compos mentis, and for whom no next friend or representative is appointed by the court, is “ sufficient cause,” under § 2481 of the Code, to authorize the surrogate to open the decree.
    Appeal from an order of surrogate,, setting aside the petitioner’s default and opening probate of will.
    
      Henning & McCall, (J. L. Henning, of counsel), for app’lt; J. W. Houghton, for resp't.
   Mayham, P. J.

The default of the petitioners was excused, .and the decree admitting the will to probate opened solely upon the allegations of the verified petition of the petitioners. The petition shows that the will related to real estate, and it does not appear by the petition of the respondent or by the affidavits used in opposition thereto, that any personal property was bequeathed in the will.

The will was admitted to probate on the 9th day of February, 1891, and the petition of the respondent to set aside the probate was filed January 4, 1892.

While it appears that the petition in this case was filed within one year from the time of the probate of the will, yet, as the will is not one of personal property, the probate could not be revoked by the surrogate under the provisions of §§ 2647 and 2648 of the Code of Civil Procedure, as those sections only relate to wills of personal property.

The power of the surrogate to vacate the decree of probate must, therefore, be found, if it exists in this case, in the provisions of §- 2481 of the Code. Subdivision 6 of that section provides that “ A surrogate in court, or out of court, as the case requires, has power to open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court; or to.grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case, and in the same manner as a court of record and of general jurisdiction exercises the same powers.”

The same subdivision gives this court on appeal the same powers as the surrogate, and requires that his determination shall be reviewed by this court as if an original application was made in this court.

This brings us to the consideration of the question whether the petition in this case, when read in the light of the evidence offered by the appellant, furnishes sufficient facts to require this court acting upon it to set aside the decree admitting this will to probate.

The petition discloses that all the parties entitled to notice of the propounding of this will for probate were duly cited. That the infants, although not personally in attendance at the time of the probate, were duly represented by guardian ad litem appointed by the surrogate.

But it is also alleged that the widow of the deceased and the mother of these infants was at the time of such service and probate, and still is, a person of unsound mind and incapable of understanding and protecting her rights and that of her infant children.

This allegation does not seem to be in any way controverted by the appellant, and must be regarded as established on this appeal. I am of the opinion that a service of citations upon a person concededly non compos mentis, and for whom no next friend or representative is appointed by the court, would be “ sufficient cause ” under § 2481 of the Code of Civil Procedure to authorize the surrogate to open the decree in this case for the probate of the will in question and to grant a new trial therein.

It is true that the widow of the testator has not, so far as appears in this case, been judicially "declared incompetent, but as that fact now appears that she is incompetent, and as she did not appear at the hearing, it would be the duty of the surrogate to appoint a competent and responsible party to appear for her in such proceeding pursuant to the provisions of § 2530 of the Code of Civil Procedure.

The whole policy of the law is that persons not competent to protect their own interest in legal proceedings prosecuted against them, or affecting their personal or property rights, must have their day in court through a competent representative, and that right has been denied, or at least was not enjoyed, by the widow in this case, and it was to guard against the injustice that might result to an incompetent party that the power was given to the surrogate by § 2481 “ to open, vacate, modify or set aside a decree for sufficient cause.”

We think the order appealed from should be affirmed, with costs.

Putnam and Herrick, JJ., concur.  