
    Matter of Antoine Ruppaner, Deceased.
    
    (Surrogate’s Court—New York County,
    December, 1895.)
    ■1. Will-^-Action to determine validity—Bar. ' ,
    One who was made a party to an action under section 2653a of the Code, to determine' the validity of a will, and who duly appeared therein, is concluded by the judgment in- favor of its validity and . cannot maintain an action to revoke its probate. • .
    2. Same ■-* Omission of parties.
    The mere fact that necessaiy parties to an action under section 2658a. were omitted is not available to a -party to - such action for the . - purpose of attacking the judgment.
    3. Same -^-Revocation. ■
    : Where' the petitioner is estopped or-otherwise disqualified from . maintaining a proceeding for revocation of probate, it cannot be continued, by an assenting respondent who could not have instituted such proceeding.
    4. Distribution—Conflict- of law..
    The succession to an .intestate^ personal - property is governed by - the law of the actual domicile of the decédent at the time of his death and devolves upon those entitled to take as next of kin according to the law of such domicile.
    5. Will — Revocation of fbobate — Limitation.
    Where the issues upon probate were tried by jury the statutory limitation of one year begins to run from the entry of the decree upon the findings and not from the time it was remitted to and filed in the Surrogate’s Court.
    Proceeding- for revocation of probate.
    
      Isaac N. Miller, for petitioner
    
      Lucius H. Canton, for proponent.
    
      
       Received tod late for insertion in proper place.—[Reporter.
    
   Arnold, S.

This is a proceeding for revocation of probate of the will of the decedent, under section 2647 of the Code. The sole petitioner is Barbara Ellensohn, a half-sister of the testator, and a person interested in his estate. All parties entitled thereto under section 2649 have been duly cited herein, and all oppose the revocation except one Anna Kristof, an infant, who appears by guardian and files an answer admitting the allegations of the petition in respect to the invalidity of the will. Upon the opening of the case the respondents, with the exception above stated, moved for a dismissal of the proceeding 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 the 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 revo-' cation' of probate, and the intention appears 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 N. Y. St. Repr. 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 thé- infant defendant, Anna Kristof, the contention being that as the statute provides that certain specified classes of persons must be 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; From 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 to 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 par-. ticipated 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. From 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 a 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 efiect. 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 establish 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 substitution of an assenting respondent • in these proceedings in the place of the petitioner. See Matter of Soule, 19 N. Y. St. Repr. 556. 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 next of kin, who- would share in the estate in case 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. Ellensolin, reside,, from which it appears, that there is a limitation on the right of parents in that country to' disinherit their chil-' dren, except uiider 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 prop- ■ erty (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 ' Hew York, the laws of that state in respect to such succession must prevail, .and under' those, laws t'he said infant . would.not, in case the testator died intestate, be entitled to any . interest whatever in 1ns estate. Code, .§ 2694.

The first ground upon which, the motion to dismiss is made . is alsOj 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 pro- ' eeeding was had) to and filed in' this 'court. The decree admitting the will to. probate was actually entered and filed in - the office o’f 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 within one year thereafter, and it is conceded that this has not been done her'e. The motion to dismiss the proceeding is granted.

Motion granted. .  