
    THORN against SHEIL.
    
      New York Common Pleas ;
    
    
      Special Term, February, 1873.
    Foreclosure Sale.—Title to Real Estate.—Probate oe Will.
    A purchaser of real estate at a judicial sale is entitled to satisfactory-record title ; and if it is derived under a will, he can claim that the will should have been duly admitted to probate; and the parties insisting on his taking the title must show not only that the will has been admitted to probate, but also that the surrogate admitting it had jurisdiction of the heirs at law of the testator.
    
    
      Motion to compel purchaser to complete purchase.
    This motion was made after judgment and sale in an action to foreclose a mortgage, brought by William K. Thorn against Lawrence Sheil and Lucy, his wife, to compel John Hanken and another, who had bid in the property at the foreclosure sale, to complete their purchase.
    The fee of the premises in question, subject to the mortgage forclosed, became vested in Michael McCaffry, in May, 1864. Michael McCaffry died seized in September, 1871, at this city, unmarried, leaving a last will and testament, by which “ after all his lawful debts and funeral expenses were fully paid and discharged,” he devised and bequeathed to his niece Lucy Shields, wife of Lawrence Shields, all the rest, residue, and remainder of his estate, both real and personal. The testator left him surviving, among his heirs at law, his brother Phillip McCaffry and his nephew James Pay. Before probate of the will, and in Hovember, 1871, the plaintiff had commenced this action of foreclosure against Lawrence Shell and Lucy Sheil, his wife, and others, as heirs at law of Michael McCaffry, but subsequently, in June, 1873, on the assumed probate of the will, discontinued the action as to all the defendants, éxcept Lawrence Sheil and Lucy Sheil. The other facts necessary to an understanding of the case relating to the probate of the will are stated in the opinion.
    
      Mr. Corbett, for the motion.
    
      F. B. Chedsey, opposed.
    
      
       It was held by the court of appeals in Young v. Bush, 18 Abb. Pr., 171; S. C., 28 N. Y., 667, that it is the duty of an executor, who is testamentary trustee of real property, to prove the will in the jurisdiction. of the real property, and that the expense of so doing is chargeable in the settlement of his accounts of the personalty in the place of principal administration. This formerly was not necessary. Doolittle v. Lewis, 7 Johns. Ch., 45, 48. It should be noticed in this connection, that the revised statutes provide that the title of a purchaser in good faith for value from the heir, shall not be impaired by devise unless the will be proved and recorded as a will of real property.
      On the whole, there seems no doubt of the propriety of the executors’ proving a will which affects real property, as such, and having it effectually so recorded in all cases, as a part of his function in securing probate.
      In many of the States the effect of the statutes is to make probate essential to give effect to a devise as well as to a legacy, and to make it equally conclusive in both cases ; while in some of the States, as in this State, the probate is, at most, only received as presumptive evidence in the case of real property, and in some c.ases not admissible at all.
      The changes in the law made by and since the enactment of the revised statutes have done much toward obliterating the distinctions formerly observed between the two classes of wills.
      Before the revised statutes, the proof of wills of real property , was made by a proceeding in the supreme court, or in the common pleas of the county, while the probate of wills of personal property
      
        was made in the surrogate’s court. Some of the distinctions between the two classes of wills which stiff appear to be indicated in the language of the revised statutes have been superseded by subsequent enactments. The most important of the distinctions in respect to probate were the following :
      1. The rule that a foreign will may be admitted to probate, although its execution did not conform to the law of this State, was confined to wills of personal property. Compare L. 1864, c. 311.
      2. The mode of compelling the attendance of witnesses, and some of the details of the procedure in the proof, as these matters were originally regulated by the revised statutes, differed according as the will was of real or personal property. Otherwise by L. 1837, c. 460, §§ 9-18.
      3. A more important distinction concerns the function of the surrogate in taking proofs. In the case of a will of real property, if he finds that the will was well executed, and the testator competent, and not under restraint, the surrogate records the will with the proofs, and this record is made evidence simply in place of the original will; that is to say, as a record of a deed is evidence in lieu of the original. In the case of wills of personal property, on the other hand, the probate is a conclusive adjudication on the validity of its execution. In certain cases of the absence, death, &c , of all the subscribing witnesses to a will of real property, the effect of the probate is still more restricted ; and the record may be received in evidence only after it has first been proved that the lands in question have been uninterruptedly held under the will for twenty years before the commencement of the action (2 Rev. Stat., 59, §18.)
      4. The revised statutes also contemplated a separate record for the two classes of wills, and to some extent a different jurisdiction; and where a will embraced both, it needed to be twice recorded. But this requisite was dispensed with by the act of 1837.
      5. The revised statutes introduced a provision that the probate of a will affecting personal property might be revoked on allegations filed within a year after probate, thus giving an opportunity to review the conclusive adjudication as to personal property, a privilege which the heir always had, by action, in cases of wills of real property.
      6. The issue of letters upon a will was contemplated only in the case of wills affecting personal property. Wills of real property exclusively were not provided for in this respect. They must now be issued in any case, before the sale of the realty to.pay debts.
    
   Robinson, J. [After stating facts.]

The name of Sheil, as contained in the foreclosure proceeding, is different from Shields, the name of the devisee and husband, but if the true parties were those that were served, an amendment might be made in this respect; but until so amended the objection must prevail for such variance.

Assuming that this error is the subject of amendment, the title which the purchaser on the foreclosure sale is required to accept, depends on that which was possessed by Lawrence Shields and wife, under the devise to the latter in the will of her uncle.

The purchaser at a judicial sale is entitled to a satisfactory record title.

When derived through or under a will of real estate, he can claim that it should at least have been dnly es-‘ tablished as a will of real estate, by the decree of a court of competent jurisdiction which will afford him at least prima facie evidence of its validity, enabling him to maintain his title.

A will of real estate, if duly proved before a surrogate having competent jurisdiction, at most constitutes such prima facie evidence, liable to be repelled by contrary proof (1 Rev. Stat., 58, § 15 ; Staring v. Bowen, 6 Barb., 109; Nichols v. Romaine, 3 Abb. Pr., 124); and until the proofs and examinations taken by the surrogate shall be recorded, the record signed and certified by him, and his certificate under seal indorsed on the will, it does not become evidence (Vanderpool v. Van Nallenby, 6 N. Y. [6 Seld.], 198). Until such record is made of the proofs and will, the purchaser is in no condition to entertain any reliance on his title. In this case there has been no such record made of the proof and establishment of the will, but it simply appears that the surrogate, after taking such proofs of' its execution as were offered, indorsed on the papers the words and figures “Admitted September 12,1872.”

His authority to act was, however, dependent upon his having acquired jurisdiction of the heirs at law of the testator whose title by inheritance was cutoff by the will.

I can discover upon the papers presented no defect in this respect, except as to Philip McOaffry and James Fay. The only evidence upon which the surrogate appears to have acted as against them was that contained, in Lucy Shield’s petition and upon proof of publication in the State paper for six weeks previous to the day appointed for taking the proof (3 Rev. Stat., 5 ed., 146, § 53, subd. 3), and there was an entire absence of any proof that they did not reside within this State or that any efforts had been made to ascertain the places of their residences, or that they “could not be ascertained the petition merely showed their residences were “ unknown.” Upon such absence of proof of the facts required by the statute to authorize the surrogate to act as against them, the proceedings had for proof of the will were void as against them for want of jurisdiction. The statutes conferring jurisdiction are to be strictly construed (Cook v. Farren, 34 Barb., 95; Wortmann v. Wortman, 17 Abb. Pr., 66; Hyatt v. Waywright, 18 How. Pr., 248 ; 1 Wait Pr., 530, and cases cited).

I do not consider it necessary to examine other objections made by the purchaser, as under these considerations, he is entitled to be discharged from his purchase and to have the moneys paid thereon, and his expenses of examining the title, refunded.

Motion denied, with ten dollars costs of this motion. 
      
       Compare Farley v. McConnell, 52 N. Y., 630.
     