
    In the Matter of the Petition for the Revocation of the Last Will and Testament of William Watson, Jr., Deceased.
    (Argued January 28, 1892;
    decided February 12, 1892.)
    Where a proceeding for the revocation of the probate of a will on the. grounds of its invalidity was conducted before the surrogate as if for the re-proving of the will, and was confined to a contest as to validity and no question arose as to its construction, held, that no question could properly be passed upon, either by the surrogate or by the General Term, except as to the legal execution of the will, and whether its probate should stand; that the statutory duty of the surrogate was performed by the rendition of a decree revoking or confirming the probate.
    Appeal from judgment of the General Term of the Supreme-Court in the second judicial department, entered upon an order made December 11, 1890, which affirmed a decree of the surrogate of Westchester county, admitting to probate the last will and testament of William Watson, deceased.
    The following is the opinion in full:
    “ This was a proceeding to obtain a revocation of the probate of the will of William Watson, deceased, and was instituted by the petition of certain of his next of kin. They set up the incompetency of the testator, and undue influence exerted in procuring the execution of his will; that the will was not properly executed and that it was not sufficiently proved. They prayed that the decree admitting the will to probate should be set aside as irregular, for the vacation of the letters testamentary and for the revocation of the probate. When the proceedings came on for a hearing before the surrogate, they were carried on from their commencement as for the re-proving of the will. The proponents gave evidence bearing upon the execution of the will. The contestants then introduced evidence to show such mental and bodily infirmities, and the existence of such habits of life and of influences as, in their view, tended to establish the incompetency of the testator to make a valid will, and that the one proposed did not express his testamentary purpose. The proponents introduced evidence to rebut any such inferences, and at the conclusion of the hearing the surrogate decided in favor of the proponents, dismissing the application for revocation of the previous probate and confirming it by a decree. No question arose as to the construction of the will, and the proceeding was confined, by the petition and by the proofs upon the hearing, to a contest over the validity of the instrument propounded as the last will of the deceased.
    “ Nor did the requests by the contestants for findings refer to any construction of the will. Although the surrogate, in his brief opinion and decree, made no reference to a construction of the will, yet at the General Term the learned justices in their opinion, after reviewing the proofs and agreeing with the surrogate, proceeded to consider the question of whether the testator’s will had executed a power of appointment, conferred by the'will of testator’s father.
    “ Upon this proceeding no question as to the legal construction of the provisions of the testator’s will arose, or could be properly passed upon by the surrogate, or by the General Term. There was nothing for these tribunals to pass upon, except as to the legal execution of the will, and whether its probate should stand. Its construction was not involved.
    “ As to the question of whether the will was legally executed by a testator possessing proper mental capacity, and not unduly influenced, we are concluded by the decision. The evidence upon which the surrogate decided was conflicting, and we cannot sáy that there was wanting sufficient and competent evidence to support the conclusion at which he arrived. He was affirmed, upon an appeal to the General Term by the contestants, and there the question was set at rest.
    
      “ Certain questions are raised as to the validity of the first decree admitting the will to probate. The appellants say that the original probate petition failed to describe the will, as required by section 2614 of the Code, an'd that the two decrees upon that probate proceeding were void; the first, because it did not determine the construction of the will, though an issue had been raised by the answer of a party; and the second, which did give a construction to the will, because it was rendered without any due adjournment of the previous proceedings.
    “ It is sufficient in answer to say that these appellants, and all persons interested, were duly in court upon the previous probate proceedings, and their remedy, with respect to such objections, was either through a proper application to the surrogate in that proceeding, or by an appeal from his decree. Such objections are not properly in the present proceeding. Upon such a proceeding' as this the stautory duty of the surrogate is performed by the rendition of a decree, which either revokes the probate or confirms it. (Art. 2, tit. 3, chap. 18 of the Code of Civil Procedure.)
    “ For the reasons here assigned, the order and judgment of the General Term should be affirmed, with costs.”
    
      E. Countryman for appellant.
    
      Cornelius E. Kene for respondent.
   Opinion per Curiam for affirmance.

All concur, except Maynard, J., taking no part.

Judgment affirmed.  