
    In the Matter of the Petition for Revocation of Probate of the Will of Antoine Ruppaner, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed December, 1895.)
    1. Will — Determination of validity — Bar.
    A party to an action to determine the validity of a will, who appeared therein, is concluded by the judgment -in favor of its validity, and cannot maintain an action to revoke its probate.
    2. Same — Parties.
    The mere omission of necessary parties to such an action is not available to a party thereto for the purpose of attacking the judgment.
    3. Probate — Revocation of- — Parties.
    “ Where the petitioner is estopped or otherwise disqualified to maintain a proceeding for revocation of probate, an assenting respondent cannot be substituted in his place and allowed to continue the proceeding.
    4. Same — Limitation.
    Where the issues of probate were tried by a jury, the statutory limitation of one year begins to run from the entry of the findings, and not from the time they were filed in the Surrogate’s Court.
    5. Distribution — Conflict of law.
    The distribution of a decedent’s personal estate is governed by the law of the decedent’s domicile at the time of his death.
    Proceeding for revocation of probate.
    Isaac N. Miller, for petitioner; Lncins H. Canton, for proponent.
   Arnold^ S.

Tbis. is a proceeding for revocation of probate of tbe will of tlie decedent, under section 2647 of tbe Code. Tbe sole petitioner is Barbara Ellensobn, tbe balfnsister of tbe testator, and a person interested in bis estate. All tbe parties entitled thereto under section 2649 bave been duly cited herein, and all oppose tbe revocation except one Anna Kri’atof, an infant, who> appears by guardian, and files: an answer admitting tbe allegations of tbe petition in respect to tbe invalidity of tbe will. Upon tbe opening of tbe case) tbe respondents, witb tbe exception above stated, moved for a dismissal of the proceedings upon grounds set forth in their respective answers. These are — First, that the proceeding was not commenced within the period limited by section 2648 of the Code; second, that the petitioner is estopped from maintaining such proceeding by reason of a judgment entered in an action to which she was a party, brought in the Supreme Court of this State by the executors of the will, under section 2653a of the: Code, to determine the validity of the probate which is herein attacked, and which judgment established such validity.

It appears from tbe judgment roll in. such action, which is put in evidence here, that Barbara Ellensohn was made a party defendant in the action, was duly served with the summons therein, and appeared and answered by attorney, and is concluded by the judgment, which adjudges: that the will is valid. This action, was brought within one year after the will had been admitted to probate. The legislature, in enacting section 2653a, did not repeal the other sections of the Code providing for proceedings for revocation of probate, and the intention ap-' pears to have been to embrace the provisions of section' 2653a within the existing system, not to« substitute it therefor. Long v. Rodgers, 79 Hun, 443. It is expressly stated in that section that the verdict in an action brought thereunder shall be conclusive as to real or personal property, with exceptions which it is not claimed apply to this case-. As the petitioner herein was a party to and is bound by the judgment in the Supreme Court action, she is concluded from further questioning the validity of the will and its probate, and further prosecution of the proceeding on her part in this, court for revocation of the probate would be futile. Matter of Peaslee, 73 Hun, 113; Matter of Soule, 19 St. Rep. 532.

The petitioner, however, insists that the judgment is. void because the plaintiffs in the action were permitted, by an order of the Supreme Court, to discontinue as against the infant defendant, Anna Kristof, the contention being that, as the statute provides that certain, specified classes of persons must he made parties to actions brought under it, a trial could not be had until all such parties were regularly before the court, so as to be bound by any judgment entered therein. Opposition was made on behalf of the infant to the application for a discontinuance of the action against her, but the motion was granted; the court holding that the infant had no ^possible interest except under the testator’s will; that she was not one of the next-of-kin; and that her grandmother (the petitioner herein), who is a next-of-kin, was bound by the judgment. Erom the order entered on this motion no appeal was taken, but thereafter an application was made by the petitioner, Barbara Ellensohn, at Special Term, to vacate the said judgment establishing the will, upon the ground that the whole judgment should be vacated as fi> all the defendants, because it had been as to the said infant, that the latter had not been properly served, and that all proceedings at and after the trial were void, although participated in by the adult defendants; the claim being that the statute peremptorily requires that a trial shall not be had until all necessary parties are regularly before the court. This application, however, was denied, it being held that it had already been adjudged by the order discontinuing the action against the infant that the latter was not a necessary party; that question having been necessarily involved in the disposition of that matter. Erom the order entered denying the motion -to vacate the judgment the petitioner appealed to the General Term, which affirmed the order, holding that the mere fact that' necessary parties are not before the court on trial does not-oust the court of jurisdiction so far as the persons are concerned who are made parties to the action, and the only effect of such omission is that the judgment is not binding upon a party who has been omitted. Keyes v. Ellensohn, 82 Hun, 13. On appeal to the Court of Appeals the order was again affirmed, without opinion. 144 N. Y. 700. It seems to be thus definitely established that even if the infant, Anna Kristof, was a necessary party to the action brought to establist the will, the omission to make her such party is not available to Mrs. Ellensohn for the purpose of attacking the judgment.

The guardian of the infant, nevertheless, contends that, even if the petitioner is estopped from maintaining the present proceeding by reason of this judgment, still his ward may continue the same by reason of her having by her answer admitted the allegations of the petition in respect to the invalidity of the will, >and asked that the prayer of the petition be granted. This proposition is untenable. There is no provision of law which authorizes the substitute of an assenting respondent in these proceedings in the place of the petitioner. See Matter of Soule, 19 St. Rep. 532. The infant was made a party to the proceedings solely by reason of the contingent interest devised to her by the will, and it is quite apparent that she could not have instituted the proceeding for revocation herself, the only parties, who are entitled to maintain such a proceeding being those interested in the estate — that is, the husband and wife, heirs-at-law or nextrof-kin, who would share in the estate in ease of intestacy — the proceeding being one to remove the obstacle presented to such distribution by the existence of the will.

In order to overcome this- difficulty, the guardian has put in evidence the laws of Austro-Hungary, where the minor, as well as her parents and her grandmother, Mrs. Ellensohn, reside, from which it appears that there, is a limitation on the right of parents in that country to disinherit their children, except under certain prescribed conditions; and he claims that, therefore, his ward has an interest in the estate which must at some future period come to her through her said grandmother. But the succession to an intestate’s personal property (and this testator’s estate exclusively consisted of personal property) is governed by the law of the actual domicile of the intestate at the time of his death; and it devolves upon those entitled to- take it as next-of-kin, according to the law of such actual domicile; and, as the decedent was at the time of his death an actual resident of and domiciled within the State of New York, the laws of that State in respect to such succession must prevail, and under those laws !the said infant would not, in case the testator died intestate, be entitled to any interest whatever in his estate. Code, section 2694.

The first ground upon which the motion to dismiss is made is, also, I think, well taken. It is claimed on the part of the petitioner that she filed her petition within one year after the recording of the decree admitting the will to probate, and'this she insists is the date when the record of the probate proceeding was remitted from the Court of Common Pleas (where that proceeding was had) to and filed in this court. The decree admitting the will to probate was actually entered and filed in the office of the clerk of the Court of Common Pleas more than a year before the filing of the petition, and I am of opinion that any proceeding for the revocation of such probate should have been initiated, one year thereafter, and it is conceded that this has not been done here. The motion to dismiss the proceeding is- granted.

Motion granted.

Note. — This case: was affirmed by the Appellate Division in 9 App. Div. 422.

Eevooation of probate.

A Surrogate’s Court cannot entertain proceedings to revoke the probate of a will which was entered in pursuance of the judgment of the Supreme Court. (Matter of De Hass, 24 Misc. Rep. 420.)

A husband of a decedent has- such an interest as a tenant by the curtesy and a beneficiary under a former will that he can maintain an action to set aside the probate of the will of his. wife. (Wells v. Betts, 45 App. Div. 115.)

An administrator of a life tenant cannot be substituted as plaintiff in an action brought by the life tenant to revoke thei will. (Matter of Milliken, 32 Misc. Rep. 317.)

_A surrogate may dismiss a proceeding for revocation of a will, where the petitioner wilfully refrains from serving the citation on certain parties before the return day. (Matter of Friedell, 20 App. Div. 382.)  