
    In re GAINES’ WILL. In re PERKINS et al.
    (Supreme Court, General Term, Second Department.
    February 11, 1895.)
    1. Appeal—Harmless Error—Probate of Will.
    Where a will devising land in another state is refused probate in that state because of defects in form, the devisee is not prejudiced by the refusal of the surrogate to admit the will to probate in New York, since, under Code Civ. Proc. § 2611, it could only be proved in New York as a will of personal properly.
    2. Foreign Judgment—Concltjsiveness as to Facts.
    A foreign judgment, though not subject to impeachment in New York, does not establish conclusively the facts and grounds on which it was rendered.
    
      3. Appeal from Surrogate’s Court—Review.
    An appeal from a surrogate’s court to the supreme court on the facts is substantially a rehearing in equity, and the case will be examined and determined anew.
    4. Wills—Authenticity—Evidence.
    An alleged will, giving one-third of the estate to proponent, who was not of kin to testatrix, to the exclusion of her grandchildren, will be rejected, as spurious, where it appears that testatrix had formerly been on friendly terms, with, but before her death had formed a derogatory opinion of, proponent; that the will was executed the day before testatrix died; and that, three days before, she had signed another will by her mark, because she was unable to write.
    Appeal from surrogate’s court, Kings county.
    Application for the probate of the will of Myra Olark Gaines, deceased. Probate was denied, and proponents, Julietta Perkins and Marie P. Evans, appeal.
    Affirmed.
    Argued before DYKMAN, PRATT, and CULLEN, JJ.
    John A. Grow (W. W. Goodrich, of counsel), for appellants.
    W. T. Gilbert, for respondents William H. Wilder and William W. Whitney.
    William H. Ford, special guardian for Zulime Whitney.
    William T. Houston, for William W. Christmas and Rhoda B. Kennedy.
    John 0. Clark, special guardian for James M. Christmas.
   CULLEN, J.

This is an appeal from a decree of the surrogate of Kings county rejecting an alleged will of the deceased bearing date January 8, 1885, and admitting to probate a will of the deceased bearing date January 5, 1885. The appeal is taken by Julietta Perkins and Marie P. Evans. The appellants are not next of kin or heirs at law of the testator, but their sole rights accrue as legatees and devisees under the rejected will. Therefore, if the will of January 8, 1885, was properly rejected, the appellants have no standing to complain of the probate of the prior will of January 5,1885; and the •only question presented is the validity of the alleged later will.

The will sought to be probated by the appellants is olographic, and is as follows:

“New Orleans, January 8th, 1885.
“I, Myra Clark Gaines, being of sound mind, bequeath to my excellent friend Miss Julietta Perkins, as a token of my esteem and love, that part ■of my estate known as the ‘Puentes Property,’ and to my friend Mrs. Marie P. Evans one-third of the remainder of my entire estate; the balance to be •divided equally between my grandchildren. I appoint Mrs. Marie P. Evans my testamentary executrix, and attainer of my entire estate, without bonds.
“Myra Clark Gaines.”

This will was offered for probate in the district court of the state of Louisiana in 1885, by Marie P. Evans. The will of January 5th was also offered for probate before the same tribunal, about the same time. As far as we can judge from the record, the parties to the litigation that ensued there were Mrs. Evans, Christmas and Wilder, the executors of the will of January 5th, and Christmas, who intervened as the natural tutor of his children, who are the grandchildren of the testator, Mrs. Gaines. Another set of grandchildren, the Whitneys, who, with the Christmas children, were the sole heirs at law and next of kin of the testator, seem in no way to have been made parties to or intervened in these proceedings. The cases being tried together, the district court adjudged the will of January 5th defective in form, and rejected it, without prejudice to an application for its probate in the courts of the domicile of the testator, and further adjudged that the olographic will of January 8th be rejected as false, fraudulent, and forged. The appellant Evans appealed from the decree, so far as it rejected the will offered by her, to the supreme court of the state of Louisiana, where the judgment below was affirmed.

It is conceded by all parties that the domicile and residence of Mrs. Gaines was in the county of Kings, in this state. The respondent’s first claim is that the judgment of the court of Louisiana is conclusive in these proceedings against the appellants. As to Miss Perkins, she was not a party to the probate proceedings in Louisiana, and therefore urges that the decree in this proceeding cannot bind her. We think this is immaterial. The only interest of Miss Perkins under the rejected will is as devisee of lands in Louisiana. The rejected will, not having been executed according to the laws of this state, could, under the provisions of section 2611, Code Civ. Proc., be proved here only as a will of personal property, and the rejection of the will can in no wise affect her rights. She has in fact no standing on this appeal, but the question remains whether the decree of the Louisiana court is conclusive against Mrs. Evans.

That decree undoubtedly established the fact that the rejected instrument was not the will of the testator, so far as administration in Louisiana is concerned. But we doubt whether it had any greater efficacy than this. Apart from any statute, all administrations of estates in different countries are independent, so far as the matter of strict right of jurisdiction is concerned. It is only as a matter of comity that administration in one jurisdiction respects those in other jurisdictions. Williams, Ex’rs, 263; Story, Confl. Laws, §§ 513-518. We think it therefore doubtful, at least, whether, Louisiana not being the domicile of the deceased, the court of Louisiana had any further jurisdiction than to make a decree binding assets within that state. We are not required by the federal constitution to give effect to anything but the judgment. While the judgment itself cannot be impeached, it does not follow that it establishes conclusively between the parties the facts and grounds on which it proceeds, as would be the case ordinarily with domestic judgments. The weight of authority in this state is against such a claim, though in the federal courts and those of many other states the rule is different Durant v. Abendroth, 97 N. Y. 132 (opinion, 141); Vandenheuvel v. Insurance Co., 2 Johns. Cas. 451.

It is conceded that substantially the whole assets of the estate are in Louisiana, and it may be well doubted whether the courts of that state would suffer the administration or disposition of assets within their jurisdiction in accordance with the provisions of a will which they have decreed to be a forgery; but that fact would not preclude the appellants proving the will here. Without deciding the question of the estoppel of the former judgment, we prefer to rest our decision on the merits. Upon examining the record before us, we find a number of rulings of the surrogate in the admission and exclusion of evidence that we deem erroneous, but this does not require us to reverse his decree. By section 2545 of the Code it is provided that such a decree shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the ex-ceptant was necessarily prejudiced thereby. By section 2586, where an appeal is taken upon the facts, the appellate court has the same power to decide questions of fact which the surrogate has; and it may, in its discretion, receive further testimony or documentary evidence. In pursuance of this power, the appellants have taken further testimony, which has been submitted to this court on the appeal. It is settled by authority that an appeal to this court on the facts is substantially a rehearing in equity, and that we may examine and determine the case anew. Burger v. Burger, 111 N. Y. 523, 19 N. E. 99, and 21 N. E. 50; Gardner v. Gardner, 34 N. Y. 164. If this be the nature of the hearing, we do not see why we should be concluded by the rulings of the surrogate, and why we may not rule on the evidence presented to us. Under this view of our power, we have rejected the testimony of Mrs. Whitney and Mrs. Davis as to personal transactions with the deceased, holding it to be incompetent, under the rule laid down in Re Smith, 95 N. Y. 526. The indictment of Mrs. Evans and the report of the conventional committee as to her claim were incompetent evidence against her. This, also, should be stricken out. There is also some slight testimony by some of the witnesses attending the sick bed of the deceased that she could not possibly have written the will. This, also, was incompetent. We have also accepted and considered the evidence produced by the appellants on the appeal to this court, and our decision is based on the record as modified by those rulings.

An examination of the evidence in the cause convinces us that the decree of the surrogate was right, and that the olographic will offered was spurious, and not written by the deceased. We do not rest this conclusion on our own comparison of handwriting, or the testimony of the experts on that subject, but on facts which are clearly established, and our belief as to probabilities of human conduct and actions. We think it clearly appears by the letters of the deceased that, at the end of the year 1882, Mrs. Gaines, who before that time had been extremely friendly with Mrs. Evans, entertained towards her entirely different feelings. She had not only lost her affection for her, but had formed a derogatory opinion of her character. That, entertaining these views, she should have left to the appellant, who was in no wise of kin to her, nor had any claims on her bounty, one-third of her estate, to the depriving her grandchildren, her daughter-in-law and son-in-law, so much, is most unnatural. The story of how the appellant obtained the will in Yew Orleans is also improbable to the last degree. Even if Mrs. Evans’ story were not contradicted by Mrs. Bradley, still to believe it would tax the credulity of the court to the greatest limit. Mrs. Bradley directly contradicts Mrs. Evans as to the delivery of the will. We agree with the surrogate that the manner in which the so-called “Bradley restitution” was obtained tends to show that the witness Bradley was not aware of the paper she was signing; but the greatest force which could be given it under any circumstances would be to treat it as discrediting the witness Bradley, and not to operate as affirmative proof of the facts stated in the paper.

The theory of the execution of the will is unnatural and improbable. That theory, as now advanced, is that in August, 1884, the deceased wrote the will, with the exception of the date, which was afterwards filled in, on the 8th of January, at New Orleans. It was necessary, so far as probate in this state is concerned, to show that the instrument was not wholly completed in Washington, as in such a case the will would not come within the terms of the statute, and be subject to probate here. Whether an olographic will, executed by a nonresident without the state, could be proved in Louisiana, we do not know. If such a will would be valid, there is no reason why its execution should not have been entire at the time. If this will was written, except the date, in Washington, the testator must have left the date blank, from her knowledge or belief that, to make such an instrument valid, the completion of its execution must take place in Louisiana. That this testator had an accurate knowledge on the subject of the law of such wills may be conceded, for she had been in litigation over property coming through such a will for more than half a century. But, if that were her intent, it would seem natural that she should have completed the execution shortly after arriving at New Orleans, instead of which, though knowing her dangerous condition, she refrained from writing the date of the will till the very day before her death, when it would supersede any prior testament. She would seem to have calculated the period of her demise with the utmost nicety. The evidence shows to our minds that the deceased was not physically able to write the date of the will at the time alleged. Three days before she had signed a will by her mark, on account of such inability. She had made also a previous will, on the 4th. The authenticity of her signature to the will of the 4th seems conceded. Neither of these prior instruments makes any provision for the appellant. It is argued that these prior wills were obtained by the influence of those surrounding her. We are asked to believe that this deceased was acting a double part, willing to apparently concede to the influence of those surrounding her, and conscious of her own power to defeat their objects by completing the execution of the olographic will, which she had concealed with her. To believe that a woman 78 years old, in the most enfeebled condition, on her deathbed, played such a role, we cannot. And, finally, that all these improbabilities should occur in a single case, yet that case be true, borders almost on the impossible. Decree appealed from to be affirmed, with costs. All concur.  