
    Jessie Belknap Ranken, Respondent, v. William H. Janes, Appellant.
    
      Appeal from a Surrogate’s Court — a decision of the appellate court, upon the facts, upon an application to revoke probate—-it is not a bar to an action to try the title to the real estate devised, by the will.
    
    Where an appeal from a decree of a Surrogate’s Court, dismissing an application to revoke the probate of parts of a will upon the ground of fraud, involves, under section 2568 of the Code of Civil Procedure, a rehearing upon the facts, the decision of the appellate court, that, upon the record then before it, no fraud was practiced upon the testator, and that, if it was, it was not the inducing cause of the testamentary provisions assailed, is not conclusive in an action at law, to try the title to real property devised by the will, between the parties to the proceeding in the Surrogate’s Court. ■
    Appeal by the defendant, William H. Janes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of April, 1896, upon the verdict of a jury directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings.
    The action was brought by the plaintiff to remove a cloud upon her title to real estate, which was claimed to be owned by the defendant,
    
      Benjamin F. Tracy, Louis O. Van Doren and Henry B. Twombly, for the appellant.
    
      Abram H. Dailey, for the respondent.
   Per Curiam :

We think that the learned trial judge misapprehended the effect of our decision in The Matter of James (87 Hun. 57), and the opinion there delivered. That was an application by the present appellant to revoke the probate of certain provisions of the will of Eckford Webb in favor of the present respondent, on the ground that they were procured by fraud. The surrogate, at the close of the applicant’s evidence, dismissed the proceeding. On appeal we affirmed the decree of the surrogate. The opinion premises the statement that the appeal was, under the Code (§ 2586), a rehearing on the facts. We did not treat the case as similar to a nonsuit in an action, nor did we determine that there was no evidence tending to establish fraud, nor that the provisions of the will were procured by fraud. We did decide upon the record then before us that no fraud was practiced on the testator, and that the fraud charged, if it did exist, was not the inducing cause of the testamentary provisions, assailed. But these questions were decided as questions of fact, not. as questions of law, and the burden of the opinion is to be treated as an argument on the propositions of fact. Our decision in the-proceeding to revoke the probate would not conclude the parties in an action at law to try title to the real estate devised. (Corley v, McElmeel, 149 N. Y. 228.)

The judgment appealed from should be reversed, and a new trial granted, costs to abide event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  