
    Joseph Rosenbaum, App’lt., v. Bertha S. Benthner, Individually and as Executrix, et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    Will—Pbobate—Injunction.
    In an action to establish a will on the ground that the surrogate had no power to admit it to probate, an application was made for an injunction to restrain the surrogate from considering the question of probate of a former will. It appeared that there was a still later'will which had been presented for probate, the persons interested in which were not made parties to the action. Held, that, by reason of this defect of parties, it was impossible for this court to adjudicate finally on the question whether the will in question was the last will of the deceased, and hence the injunction was properly denied.
    Appeal from order denying application for an injunction pendente lite.
    
    
      H. R. Beekman, for app’lt; Bdivard B. Wise, for resp’ts.
   Van Brunt, P. J.

This action was brought in September, 1890, to establish an alleged will of one Solomon Benthner made in 1858, upon the ground that the original will is in possession of a court of a foreign country, and that said will was executed in Prussia, according to the laws of that kingdom, by the testator, a resident of Pennsylvania at the time of the execution of the will, but of New York at the time of his death, and that the surrogate •of New York county had no power to admit such a will to probate.

It appears that on the 5th of June, 1889, said Benthner, a resident of the state of New York, died in said state, leaving him ¡surviving the defendant, Bertha Benthner, his widow, and Lena Woolfers, his sole heir and next of kin. On the 13th of November, 1889, letters of administration were issued to the widow and she has ever since assumed and continued to act as administratrix. A will of said Solomon Benthner, bearing date in 1855, in which the defendant Spiegelberg was named as executor, was discovered, and in June, 1890, a petition for the probate of said will was filed in the office of the surrogate, and a citation thereunder was issued returnable the 13th of September, 1890.

It further appeared that prior to this time a petition for the probate of another will, dated in October, 1882, had been preseated by one Jacob BL Rosenbaii, a brother-in-law of the widow of the deceased, which said will was in the possession of a notary public in Cologne, Germany, who refused to deliver possessions thereof. The widow contested said probate on the ground of the-incapacity of the testator to make a will and upon the further-ground of the improper execution of the same.

As part of the relief prayed for in this action, it was sought to-enjoin the surrogate from considering the question as to whether the will of 1855 should be admitted to probate or not.

Whatever might have been our opinion if all the parties interested in the controversy as to the will of the deceased had been before the court and made parties to this action, it seems to us, in view of the fact that the parties interested in one of the wills in-existence not having been made parties to this action, that the court is not in a condition to finally adjudicate upon the point as. to whether the will of 1858 is really the last will and testament, of the deceased or not.

The plaintiff in the commencement of this action seems to have studiously omitted to make parties any persons interested in the will of 1882, and it is as important to ascertain whether the will of 1882 is a good and valid will as to ascertain whether the will of 1858 is entitled to be admitted to probate; and the same objection which is raised against the proceeding of the surrogate in determining the question as to the will of 1855 may be urged against allowing the plaintiff in this action to proceed without having the parties interested in the will of 1882 before the court.

It may be true that the surrogate has no power to probate the will of 1858 even if the parties interested therein are entitled to-have the same established; but it is equally true that the surrogate has the power to consider the question as to the validity of the will of 1858 in determining whether the will of 1855 shall be admitted to probate. And he has also the power to determine whether or not the will of 1882 is a good and valid will and revoked the wills of 1855 and 1858.

It will be seen, therefore, that in consequence of this defect, of parties it is impossible for this court to finally adjudicate upon, the question as to whether the will of 1858 is, or is not, the last, will and testament of the deceased

Under such circumstances it is clear that an injunction should not issue. Neither the surrogate’s court nor the supreme court can make a final adjudication upon the question as to which of these wills shall be established as the last will and testament of the deceased. This being the condition of things, there seems to-be no ground for dragging the controversy into this court, rather than allowing the surrogate to go on and determine the question as far as the same is presented before him for determination. A different result might, perhaps, have been reached had the suit been brought in such form that the question as to the precedence-of these various wills could have been determined in this action. But there being this defect of parties apparent upon the face of the papers presented, this court should not exert its equitable powers to restrain the action of another court within the limit of its jurisdiction.

The order should be affirmed, with ten dollars costs and disbursements.

Barrett and Bartlett, JJ., concur.  