
    In the matter of F. Atkinson’s will.
    In issuing a commission to take proof of a will in a foreign country for the purpose of establishing the same and having it recorded as a will "of real estate .within this state, the same notice of the application for a commission •. must be given to the heirs at law of tlie testator and the persons interest, ■ed in contesting the will, as is required upon proving a will before a surrogate.
    ■Persons authorized to contest the validity of the will may join in the commission, and may be permitted to name a commissioner oh their part; and they will also be entitled to reasonable notice of the time and place of executing the fcommission. , - '
    May 8th.
    ■ This was an application on the part of three of the devisees "of Francis Atkinson, late of Kirbym.oorside, in the coun-: ty of York, in England, deceased, for a commission tó take the proof of the execution óf his will; for the purpose .of having it established and recorded as a will of certain real property situated within this state. By their petition it ap> peared that the testator was a citizen of the United States, but resided in England and died there. That he made a will and two codicils, duly executed according to the laws of this state to pass real estate ; and that all the witnesses thereto resided in England. That all the heirs at law of the testator capable of inheriting lands within this state, except the petitioners, resided in the United States ; and that one of them resided at Rochester in this state. That the will and codicils had been duly proved as to the personal estate in the prerogative court of Canterbury, where, by the laws of England, the originals are filed and must remain of record.-
    
      J. Rhoades, for the petitioners,
    asked that a commission' might be issued to take proof of a duly authenticated copy of the will and codicils ; and as there was no dispute as to the validity thereof, that notice to the heirs at law might be' dispensed with in this case.
   The Chancellor.

The petitioners have complied with' all the requisites to entitle them to a commission. And if the facts are correctly stated in the petition, which there is no reason to doubt they are also etitled to have the authenticated copies of the will and codicils proved and recorded instead of the originals, which cannot he obtained' from the ecclesiastical court at Doctors Commons; The' only questions which arise are as to the propriety in any case1 of issuing such a commission wholly ex pai’te, and without giving those who may have an interest in contesting the validity of the will and opportunity to join in the commission-, or to object to the commissioners named by the petitioners ; and whether any, and what notice should be given to the’ heirs at law to appear and contest the validity of the will. The legislature have given to the chancellor an unlimited • discretion on this subject; and in this particular case, where the probate is perhaps mere form, it is probable no injury could arise from issuing an ex parte commission, or from permitting it to be executed without any notice to the heirs at law. But as this is the first application which has been made under the recent statute,. I am Utiwilling to establish a precedent that may lead to. abuse in cases which may hereafter occur. The record of'the proof of a will of real estate ia only presumptive evidence of the due execution thereof and of the capacity of the testator. Yet in relation to wills executed in a foreign country, this proof will in most cases.be in fact conclusive upon the rights of the heirs at ■ law ; in consequence of the difficulty and expense of repelling -such proqf in each particular suit- which may be brought here in relation to the estate. But ■ few causes therefore will arise .where the chancellor, in the exercise of a sound discretion, - could permit .a will to be proved and recorded without any notice to those who have an interest to.contest its validity. If it should appear from the petition that, there was no heir capable of taking the estate" by descent, it might be necessary to direct notice to be given to .the attorney general ; so that the rights of the people might be protected and preserved. Personal service of notice may not be necessary where the parties interested live out of the state. And probably the notice required by the statute on the proof of such wills before the surrogate would be the best mode of giving infori mation that a' commission is applied for. if the’ heirs at law-claim the estate," they probably will have", some' agent here to attend to their rights ; or they may employ a solicitor and file á caveat with the register to prevent a commission from being issued without giving them an opportunity to join therein. Where they" appear and signify, their wish to contest the will,- the court can then direct such notice of the time and place of the execution of the commission to be given as may be proper. - • ,

In "this case an.order must be entered directing the heirs ■ at law and all other persons interested in contesting the validity of the will or codicils, to show cause before the chancellor, on the first Tuesday of July next, why a commission should not issue to take proof of the authenticated cbpies of. the original will and codicils bh file in the prerogative court of Canterbury ; to- the end that the same may be recorded . as a Will of the real estate of the testator situated within this-state. A copy of the order must be published-in the state páper weekly for six week previous to that time, and a copy thereof must be served on the heir at law who resides at RoChester, either personally or, in case of his absence, by leaving the same at his residence, at least twenty days before the time appointed for showing cause. And in case any person authorized to contest the validity of the will or codicils appear and shows his right to contest the same, he will be permitted to join in the commission. He will also be allowed to name a commissioner on his part, and will be entitled, to such reasonable notice of the time and place of executing the commission, and to be given in such manner, as the court may then think proper to direct. The necessary directions will also be given at that time as to the manner of executing and returning the commission.  