
    Westchester County.
    Hon. OWEN T. COFFIN, Surrogate
    February, 1890.
    Matter of Hamilton.
    
      In the matter of the application for the probate of the will of Alexander Hamilton, deceased.
    
    Where it is sought to set aside and revoke or vacate a decree admitting to probate a will of personal and real property, the proceeding must be taken under subdivision 6 of section 2481 of the Code of Civil Procedure, which authorizes the Surrogate to open, vacate, modify or set aside in certain cases a decree of his court.
    Such application when made upon the ground of the discovery of a later will, should be made on proper affidavits and should pray for an order that the decree be vacated and that all persons interested may be cited to show cause why such order should not be made. The citation should be directed, not only to the heirs at law and next of kin who were cited to attend the probate, but also to the legatees, if any, who did not belong to either class and were not required to be cited. Upon the return day, if the proofs are sufficient to justify it the decree will be set aside, and the later will, if sufficiently established, admitted to probate.
    The provisions of sections 2647 et seq. of the Code do not apply to the revocation of such a will, as they relate exclusively to wills of personal estate only.
    Application for the revocation of the probate of a will of real and personal property.
    A will and codicil of the deceased were duly admitted to probate on the 20th day of January last, and letters testamentary issued to the executors. Shortly thereafter there was discovered, among the papers of the deceased, a will bearing a subsequent date, which, among other things, contained a provision revoking the will and codicil so admitted; whereupon a question arose as to the proper method to be pursued to cause a setting aside of the decree by which they were admitted to probate.
    Ogden, Beekman & Ogden, for petitioners.
    
   The Surrogate.

Before the enactment of the present Code, it had been held that the Surrogate had, among his incidental powers that of setting aside and vacating a decree admitting a will to probate, on the discovery of a will of later date, but the mode of procedure to reach such a result, was not then, nor is it under the present Code, very distinct, nor am I aware of any settled practice upon the subject now subsisting. It would seem, however, that an application should be made upon proper affidavits, under subdivision 6 of section 2481 of the Code, which authorizes the Surrogate to open, vacate, modify or set aside, in certain cases, a decree of his court, praying for an order that the decree be vacated, and that all persons interested might be cited to show cause why such order should not be made. The citation should be directed not only to the heirs at law and next of kin who were cited to attend the probate, but also the legatees, if any, who did not belong to either class and were not required to be cited. By the admission of the will to probate such legatees at once became parties in interest, whose rights could not be affected except upon notice. The later will may not have made them legatees at all; and it may have materially affected the rights of the heirs at law and next of kin as fixed by the prior one. On the return day of the citation if there were no opposition, or if there were, and the proper facts stated in the petition and affidavits were established and deemed sufficient to justify it, an order would be made setting^ aside the decree, provided the later will should be sufficiently established to warrant its admission to probate. Then, in case it would not be, the original decree would stand.

If the order prayed for were granted as suggested, then the usual proceedings would be had to prove the later will. If successful, it would, as above stated, operate to make the order of revocation final; if, on the contrary, it failed, the original decree would remain of full force.

It is insisted, however, by the counsel for the executors that a proceeding for the revocation of probate may be instituted under article second, chap. 18 of the Code (section 2647). The history of that article seems to be as follows: Under the 2 R. S. 61, §§ 30, 31, etc., and under the Laws of 1837, chap. 380, as embodied in 3 R. S. 142, § 24, etc., (5th ed.,) a proceeding of that character was confined exclusively to the revocation of wills of personal property, but it was held, in the Matter of Kellum, 50 N. Y. 298, that where the probate related to a will of both real and personal estate the Surrogate had power to revoke it as to the personal estate only, while it would stand as a will of real estate. The section of the Code referred to was originally reported by the commissioners provided for proceedings for the revocation of probate, without confining it to a will of personal estate only, thus seeking to avoid the ruling in the Matter of Kellum, supra, but the legislature saw fit to add the words “ of personal property ” after the word “ will ” and so, in that respect, leaving it as it stood under the act of 1837 and the decision above referred to. As this will relates to both real and personal estate, the desired result cannot therefore be attained under a proceeding of that character, and the only remedy is to be found under section 2481. The course indicated should be pursued in this instance.  