
    In the Matter of the Judicial Settlement of the Account of Katharina Wohlgemuth and Valentine Foerschner, as Executors, etc., of Charles Wohlgemuth, Deceased. Village of Seewen, Appellant; Katharina Wohlgemuth and Valentine Foerschner, as Executors, etc., of Charles Wohlgemuth, Deceased, and Others, Respondents.
    First Department,
    January 19, 1906.
    Will — validity thereof cannot foe attacked collaterally after probate — will stands unless attacked iñ maimer provided toy statute.
    When a will and codicil have been admitted to- probate, the validity of said will, so far as it relates to .personal property', cannot he attacked collaterally in a proceeding to contest the validity of payments made to legatees 'therein.
    ■Such probate is conclusive so far as it relates to personal property until reversed ■on appeal, or revoked by the surrogate on the petition of an interested person . within one year after probate, or opened, vacated; modified or set aside by, the surrogate under like conditions as in. a court of record, or unless an action is brought in the Supreme Court to determine its validity within two years.
    The fact that a legatee was not cited on the probate gives no right to attack the. will collaterally, when the citation of .such legatee is not required.
    Appeal by the Village of Seewen from certain portions of a decree of the Surrogate’s Court of Hew York county, entered in said SuTr.ogate’s Court on the 12th day of 'July, 1905, judicially settling and allowing an executors’ account and directing distribution of the fund in the hands of the said executors.
    
      Lucius H. Beers [Darius E. Peck with him on brief], for the appellant.
    
      Andrew S. LLamersley, for the executors, respondents.
    
      Meyer dé Godson, for the legatees, respondents.
   Clarke,. J.:

Charles Wohlgemuth, the testator, died, at the German Hospital in Hew York city on August 20,1903, after a surgical operation on August nineteenth. On August eighteenth, the day before the operation, he made a holographic testamentary instrument. On the following day, August nineteenth, he made another testamentary instrument, also holographic. These two instruments were subsequently offered for probate as the last will and testament of the deceased, and upon such proceedings a decree was entered on the 2'Tth day of February, 1904,'in the Surrogate’s Court. By said decree it was Ordered, adjudged and' decreed that the instruments offered for probate herein be, and the same hereby are, admitted to probate as the last will and testament of the said deceased, valid to pass real and personal property; and that letters testamentary be issued thereon to the executors who may qualify thereunder.”

On the 2d day of March, 1905, the executors presented a petition to the Surrogate’s Court, wherein they set forth the issuance of letters testamentary to them, the names of the persons interested in the estate of said deceased, as creditors or persons claiming to be creditors, or next of kin, legatees or otherwise ; that more than one year had elapsed since the issuance of letters testamentary, and prayed that their account might be judicially settled, and that the persons above mentioned might be cited to attend the settlement thereof; and at the same time filed their'verified account. A citation was duly issued as prayed. Schedule E of said account, entitled “ Containing a statement of all moneys paid to the legatees or next of kin of deceased,” showed the payment of seventy dollars in sums of ten dollars and fifteen dollars to six persons, described as follows in the instrument executed on August 18, 1903 : “ $10.00 each to the four sister nurses. Also $15.00 each to the two men nursés. (orderlys) of the German Hospital in ward or floor I have heen treated.”

To this account objections were on May 8, 1905, filed as follows: “ The Village of Seewen, cited herein as the community of Seewen, hereby objects to all the payments made by said executors to legatees as set forth in Schedule E of the account of said executors filed herein, on the ground that said payments were' not authorized by the terms'of the last will and testament of the said Charles Wohlgemuth, deceased.” ' The learned- surrogate filed a decision in which, as findings of fact, he found, inter alia, that the executors had filed a true and correct account Of all their proceedings; that the said payments objected to were valid payments; that the balance in the hands of the executors should be distributed and paid as follows : “ * * * 3. All the legacies mentioned in the last will and testament, dated August 18th, 1903, and codicil thereto, dated August 19th, 1903, pf said Charles Wohlgemuth, deceased, except the legacy of Martin Wagner.

“4. The balance to the Village of Seewenand, among his conclusions of law, that “ the objections of the Village of Seewen to the account of tlie executors are overruled and said account should be. judicially settled and allowed as filed " * * The legacies

given' by the last will and testament of Charles Wohlgemuth, deceased, dated August 18, 1903, to (enumerating -legatees), are good and valid legacies under the last-will and testament * * * and should be paid by the executors out of the funds in their hands-remaining; ” and .that “ The Village of Seewen is the residuary legatee under said last will and testament; ” and a decree Upon said decision and in conformity therewith was duly made and entered.

. The village of Seewen excepted to certain findings and conclusions, and to the refusal of the surrogate to find certain proposed findings and conclusions presented by it, and appeals to this court from certain portions of said decree. '

The exceptions are based upon the contention that the instrument dated August 19, 1903, was the last will and testament of the deceased; that it was complete within itself; that it necessarily entirely revoked the prior instrument; that, therefore, • all of. the legacies in the instrument of August eighteenth fall, and that' appellant is entitled to practically all of the estate. The vice of ■ this contention is that it attacks the decree of probate in a collateral proceeding. If the appellant is right the instrument of August, nineteenth was the last will and testament of the deceased. If so, it alone should have been admitted to probate. The case of Newcomb v. Webster (113 N. Y. 191), cited by appellant, was an action in the Supreme Court for the judicial construction of a will. On appeal to the Court of Appeals it was said: It may be taken as a well-settled general rule that a will and codicil are to be construed together as parts of one and the same instrument, and that a codicil •is no revocation of a will further than it is so expressed. * * * The same principle applies with greater force where there are two distinct instruments relating to the same subject-matter. In such a case an inconsistent devise or bequest in the second or last instrument is a complete revocation of the former. But if part is inconsistent and part is consistent, the first will is deemed to be revoked only to the extent of the discordant dispositions, and so far as may be necessary to give effect to the last one made. * * * There is, moreover, an express revocation of so. much of the will as is inconsistent with the provisions of the codicil. If we apply this language literally, it is obvious that the entire will is to be discarded, except so much as appoints executors and defines their powers. The codicil does not deal with that subject, and to that extent the testatrix was justified in regarding the will as a subsisting instrument. * * * Both instruments were, however, properly admitted to probate for the appointment of executors by the will holds good although the estate is to be administered according to the provisions of the codicil.”

In the case at bar there, is no such need for the probate of both instruments. • The second paper appoints the executors, and the appellant claims that the first instrument is not to be looked intd for any purpose. If that be so, surely it was improperly admitted to probate. But the decree admits both instruments as the last will and testament of the deceased. Section 2626 of the Code of Civil Procedure provides that “A decree admitting to probate a will of personal property made as prescribed in this article is conclusive as an adjudication upon all the questions determined by the surrogate • pursuant to this article, until it is reversed upon appeal or revoked . by the surrogate, except -in an action brought under section twenty-six hundred and fifty-three-a of this act to determine the validity or invalidity of such will; and except, that a determination made • under section twenty-six hundred and twenty-four of this act is conclusive only upon the petitioner and each "party who was duly cited or appeared, and every person claiming from,, through or under" either of them.”-

Section 2647 of the Code'provides that a person interested in the estate- of a deceased -person may present to the Surrogate’s Court, in which a will of personal property: was proved, a verified written petition containing allegations against the validity óf the will and asking for a revocation of probate. Section 2648 of 'the Code provides that this petition must be presented within one year after the recording of the decree admitting the will to probate except as therein otherwise' provided: - Subdivision 6 of section 2481 ,of thó - Code gives the surrogate 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.”' ' Section 26p3a of the Code provides that “Any person interested as devisee, legatee or otherwise in a will or codicil admitted to probate in this State * , * * may cause the validity or invalidity of the probate thereof to be determined in an action in the Supreme Court * * “. . The issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will and codicil-of the testator or-either. * * * The" action brought as herein provided" shall be commenced within two years after the will or codicil has been admitted to probate, but persons within the age" of minority, -of -Unsound mind, imprisoned, or absent from the State, may bring such action two years after such- disability has been removed.” ■ .

. . ’ It follows that the decree admitting a will to probate so far as it" relates tq personal property is final and conclusive .until • reversed upon appeal or revoked by the surrogate; that a person interested in the estate may proceed within a year by petition for revocation, whereupon a trial de novo may be had (Code Civ. Proc. § 2651), or may move under like conditions 'as in a court of record “ to open, vacate, modify Or set aside” the decree, or may within two years bring an action in the Supreme Court to determine the validity of the will. Unless tested in some one of these ways, however, it is “conclusive as an adjudication upon all the questions determined by the surrogate pursuant to this article.” (Code Civ. Proc. § 2626.)

“ With respect to the probate of a will, so far as it relates to personal property, the surrogate’s decree is made by the statute conclusive, as an adjudication, until it is reversed on appeal or revoked by him. * * * As to the personal property, if the person interested is not under disability, or the surrogate’s discretion is not invoked for a sufficient cause, under subdivision 6 of section 2481, the probate concludes all mankind after the lapse of one year. In such event the disposition and distribution of the personalty by the executor are beyond question or recall and a finality. The proceeding for the probate is in the nature of a proceeding in rein, which is binding upon all parties who are entitled to participate, and are brought in by due process of law!” (Hoyt v. Hoyt, 112 N. Y. 504.) Eor does it matter that the appellant was not cited upon the probate proceedings. The statute does not require the citation to be served upon a legatee (Code Civ. Proc. § 2615), although by section 2617 such legatee may appear at his election. “ The decree was made in a proceeding in which all the parties required to be cited were before the court. It is, therefore, as to the personal property of the testator affected by the will or codicil, conclusive as an adjudication not only upon such parties, but upon the applicant, who neither appeared nor was cited in the proceeding.” (Matter of Tilden, 32 Misc. Rep. 118, and causes cited; affd., 56 App. Div. 277.) The decree having become conclusive by the expiration of a year, the executors paid certain of the legacies provided for by a part of the instrument declared by the surrogate to be decedent’s last will and testament. These payments were objected to, and in such collateral attack the validity as a last will and testament of the, portion of the instrument providing for them was assailed. We do not believe it can be done in the case at bar. As the surrogate has by a conclu- > si-ve adjudication probated both papers -as- the last -will and testament, it was his and is now our duty to construe every part of the whole paper established as a will together.' Construing the .entire document, we -find no error in his' decision, and. the decree appealed from is affirmed, with costs to the executors against the appellant.

•O’Brien, P. j,, Ingraham, Laughlin . and Houghton, JJ., concurred.

Decree affirmed, with costs to the executors against the . appellant. 
      
       Sic.
     
      
      Code Civ. Proc. chap. 18, tit..3, art. 1.— [Rep.
     