
    In re BRADLEY'S WILL.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    1. Wills—Revoking Probate—Parties to Probate Proceedings.
    Under Code Civil Proc. §§ 2647, 2648, providing that a person interested in the estate of a decedent may present a petition to have the probate of decedent’s will of personalty set aside within one year after the decree of probate is recorded, the right to proceed on such petition is not affected by the fact that petitioner was a party to the probate proceedings, and filed objections, but did not appear to substantiate them at the hearing.
    2. Same—Persons Interested in Estate.
    Code Civil Proc. § 2647, authorizing “a person interested in the estate” of a decedent to present a petition to set aside probate of decedent’s will of personalty, includes the next of kin of testator, though they are not legatees.
    3. Same—Petition—Averment on Interest.
    A petition in such case, which contains no averment of petitioner’s interest in the estate, except that he is an “heir at law,” is insufficient, since he may be an heir at law, and yet not entitled to share in the personalty, to which alone section 2647 applies; but the defect is cured by a stipulation that petitioner is one of the next of kin of testator.
    4 Limitations—Commencing Special Proceeding—Serving Citation.
    Code Civil Proc. § 2517, provides that “the presentation of a petition Is deemed the commencement of a special proceeding,” within the statute of limitations, “but, in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition must within 60 days thereafter be served.” Held, that the citation is required to be served within 60 days after it is issued, and not within 60 days after the petition is presented. In re Bonnett’s Will, (Surr.) 9 N. Y. Supp. 459, disapproved.
    5. Surrogates’ Courts—Supplemental Citation.
    Under Code Civil Proc. § 2481, authorizing surrogates to issue supplemental citations, such citations need not be marked “Supplemental.”
    Appeal from surrogate’s court, Wyoming county.
    Petition by Merritt E. Bradley to revoke the probate of the will of Alice W. Bradley, deceased. From a decree dismissing the petition and ratifying and confirming the probate of the will, petitioner appeals.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Johnson & Charles, for appellant.
    L. A. Hayward, for respondents.
   HAIGHT, J.

On the 24th day of June, 1890, a paper purporting to be the last will and testament of Alice W. Bradley, deceased, was admitted to probate by the surrogate of Wyoming county. On the 22d day of June, 1891, the appellant petitioned that court for a decree revoking the probate, and for “such other or further relief as may be just.” On the receipt of such petition the surrogate issued a citation directed to the legatees named in the will, citing them to appear at a surrogate’s court to be held in that county on the 8th day of September, 1891, at 10 o’clock A. M., then and there to show cause why the probate of such will should not be revoked. Most of the legatees being nonresidents of the state, an order of publication was made, and the citation was duly published in a newspaper known as the Wyoming County Leader, for six successive weeks; but through a mistake of some of the employes of the Perry Herald it was published in that paper but four weeks. On the return day of the citation it appeared that John E. Bradley had not been served^ and that the executor named in the will, L. A. Hayward, had not been made a party to the proceeding. The appellant thereupon applied to the surrogate to issue a supplemental citation including the name of Hayward as a party, which nxetion was granted, and that citation was regularly served. It was made returnable on the 9th day of November, 1891, at which time the respondents, through their attorney, moved that the proceedings, be dismissed, upon the following grounds:

“(1) The petition to revoke the probate is made by Merritt E. Bradley, who was a party to the proceedings under which the letters testamentary were issued, and was named in the citation as one of the next of kin of the deceased. On the return day of the citation, May 26, 1890, he appeared by his attorneys, and filed his objection to the probate of the will. The objections1 were identical with those now presented as grounds for revoking the probate. The case was adjourned upon his application to June 24, 1890, to give him time to support his objections by competent proof. On the adjourned! day he did not appear, and the will was then admitted to probate. He has had his day in court, and is now estopped from further contest of the will upon the grounds urged before and settled by the decree. (2) The petitioner-in this case is not one of the persons authorized by the Code (section 2647) to institute a proceeding of this kind, as he is not interested in the estate^ The former statute from which this section is partly taken allowed ‘any of the next of kin’ to make the application. It is now necessary, under the above section, that the petitioner have a present pecuniary and existing interest in the estate. This petitioner has no interest whatever, not even a contingene one, as he gets nothing under the will. * * * (3) The surrogate had no-power to issue a second citation that was not even supplemental to the original citation, but one wholly new. There is no statute authorizing the issuing of such a citation ninety-one days after filing the petition, as was done in this case. It is the duty of the surrogate at once on the presentation of the petition to issue the citation. (4) This case comes under the definition of special proceedings as given in sections 3333, 3334, and section 3343, subd. 20, of the Code; and in a special proceeding section 2517 of the Code requires that service of a citation be made within sixty days after the presentation of the petition. The proof here shows that no service was made upon any of the parties, and no publication of the citation was made until 100 days after. The surrogate lost jurisdiction of the case by the failure to make service within the time required by law. (5) The jurisdiction of a surrogate relating to the revocation upon petition of the probate of a will is wholly statutory, and the statute must be strictly followed. It cannot be altered or disregarded.”

This motion was granted, and from the decree entered thereon this appeal was taken.

Section 2647, Code Civil Proc., provides that:

“A person interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate’s court in which a will of personal property was proved a written petition, duly verified, containing allegations, against the validity of the will or the competency of the proof thereof, and praying that the probate thereof may be revoked, and that the persons enumerated in the next section but one may be cited to show cause why it should not be revoked. Upon the presentation of such a petition the surrogate must issue a citation accordingly.”

The next section provides that the petition must be presented within one year after the recording of the decree admitting the will to probate.

It is claimed, as we have seen, that the appellant is estopped from presenting a petition under the provisions of the Code, for the reason that on the return of the citation issued upon the application to have the will admitted to probate he appeared and filed objections to such probate, and did not appear to substantiate the same upon the adjourned day thereafter. We do not so understand the Code. The provision is broad. “A person interested in the estate” may present the petition “within one year after the recording of the decree admitting the will to probate.” The evident purpose was to afford a safeguard against imposition or mistake, and to afford a means of relief in the case of the discovery of new evidence. This question has been fully considered in Re Will of Gouraud, 95 N. Y. 256, 258, 259, and in Re Will of Kellum, 50 N. Y. 298, in which it was held that the petitioners had the right to have the whole question litigated and determined, the same as if no adjudication had been had thereon. It is true that those cases arose under the Bevised Statutes, but in the former case the provisions of the Code were discussed, and stated to be substantially to the same effect. We cannot assent to the proposition that “a person interested in the estate” must be a legatee under the will. Such a construction of the provision would virtually nullify the statute. It would deprive the next of kin who were not fortunate enough to be legatees of the right of the review given by the Code. Ordinarily, the persons who receive the benefits under a will are interested in the maintaining of it. Under the Bevised Statutes it was provided that “any of the next of kin” might present the petition. Under the Code “a person interested” may present it. The change in phraseology was doubtless made for a purpose, and was doubtless intended to give others than the next of kin, but who were interested in the estate,—such as a widow, for instance,—the right to petition. The petition does not show that the appellant is “a person interested” under the provisions of the Code. It does allege that he is an heir at law. It does not state his relationship, or whether he is a next of kin. He may be an heir at law and not a next of kin. An heir at law may be entitled to take real estate by descent, and yet he may not be entitled to a share in the distribution of the personal estate. Under the provisions of the Code these proceedings are limited to wills of personal .property. There may be a will disposing of both real and personal property, and the proceedings may be instituted as to such a will; but in such proceedings the devisees are not necessary parties, and the revocation, if made, would only extend to the personal property. In re Will of Kellum, 50 N. Y. 298, 300; In re Hamilton, (Surr.) 20 N. Y. Supp. 73. It does not, therefore, appear from the allegations of the petitian that the appellant is a person interested in the personal estate of the deceased. But a stipulation appears in the appeal book, which we think cures this defect. It was stipulated “that"the op-' pellant herein, Merritt E. Bradley, was a party to the proceedings under which letters testamentary were issued, and was named in the citation as one of the next of kin of deceased, but was not named in the said will either as legatee, devisee, executor, or otherwise; that he is an heir at law and next of kin of said deceased.” It thus appears from the stipulation of the parties that the petitioner was a next of kin; and, if a next of kin, under the statute of distribution he would be entitled to his portion of the personal property of the deceased not disposed of by will.

Section 2516, Code Civil Proc., provides that:

“Except in the case where it is otherwise especially prescribed by law, a •special proceeding in a surrogate’s court must be commenced by the service •of a citation issued upon the presentation of a petition. But upon the presentation of a petition the court acquires jurisdiction to do any act which may be done before actual service of citation.”

Section 2517 provides that:

“The presentation of a petition is deemed the commencement of a special '.proceeding, within the meaning of any provision of this act which limits the time for the commencement thereof; but, in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the .petition must within sixty days thereafter be served, as prescribed in section 2520 of this act,” etc.

It is claimed that the citation must be served within 60 days after ■the presentation of the petition. We do not so understand the ■provision. It must, however, be served within 60 days after the citation is issued by the court. This is made clear- by the provision of section 2517. But it is said that the citation issued in this case was not served within 60 days. It is true that the first citation was not properly served at all, and an amended or supplemental citation was .issued, which was properly served within the statutory time. In Re Will of Gouraud, supra, the petition was presented but one day before the expiration of the year, but the citation thereon was not issued for over three months thereafter, more than ninety days after the proceedings had been commenced, and the surrogate had acquired jurisdiction; and yet it was held that the proceedings were regular.

Code Civil Proc. § 2481, provides that:

“A surrogate in court or out of court, as the case requires, has power (1) •to issue citations to parties in any matter within the jurisdiction of his court, and in a case prescribed by law to compel the attendance of a party. (2) To adjourn from time to time a hearing or other proceeding in his court; and, where all persons who are necessary parties have, not been cited or notified, and citation or notice has not been waived by appearance or -otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation, or require the petitioner to give ■an additional notice, as may be necessary.”

Here we have express authority giving to the surrogate’s court . the power to issue a supplemental citation where there has been a failure to serve all the parties necessary, or where other persons are necessary parties to the proceeding. Such a citation was issued in this case. It was not necessary that it should be marked “Supplemental.” The fact that it was issued after and in place of the other made it a supplemental citation, and it was served, or the publication thereof commenced, within the 60 days after it was issued, as required by section 2517. In re Phalen, 51 Hun, 208, 4 N. Y. Supp. 408; In re Liddington's Will, (Sup.) 4 N. Y. Supp. 646.

The cases of Pryer v. Clapp, 1 Dem. Sur. 387; Fountain v. Carter, 2 Dem. Sur. 313, and In re Bonnett, (Surr.) 9 N. Y. Supp. 459,—as to the questions herein discussed, must be considered as overruled by the cases referred to.

The decree should be reversed, and the proceedings remitted to the surrogate’s court of Wyoming county to proceed thereon; the costs to abide the final award of costs. All concur.  