
    CORLEY v. McELMEEL et al.
    (Supreme Court, General Term, Second Department.
    May 13, 1895.)
    Wills—Refusal to Admit to Pbobate—Effect as to Devisee.
    A decree of a surrogate’s court refusing to admit a will of realty to probate is not conclusive on the devisees as to the validity of the will. 28 N. Y. Supp. 785, affirmed.
    Appeal from special term, Kings county.
    Action by Rose Corley against James- McElmeel and others for partition. From a judgment in favor of defendant Annie E. Stover against plaintiff and the other defendants, and from an order denying a motion for a mew trial, the defendants other than Annie E. Stover appeal, specifying in the notice of appeal that they also intended to bring up for review the decisions made by Mr. Justice Kellogg (28 N. Y. Supp. 785) and Mr. Justice G-aynor, in effect, that the decision of the surrogate of the city and county of New York denying the probate of the alleged will of Patrick Trenor, deceased, is not conclusive as to any parties claiming under the will, nor as to any parties cited to appear or appearing in the said proceedings before the surrogate, and allowing the said will to be presented and proved in this action by any party claiming any interest in the lands, and directing that the issue touching the validity or invalidity of said will be tried by a jury.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Shepard & Quinn, for appellant Rose Corley.
    Thomas Bracken, for appellants McElmeel and Catherine Mc-Carron.
    Joseph I. McKeon, for appellant Margaret McCloskey.
    Boardman & Boardman, for respondent Annie E. Stover.
    Ayres & Walker, for respondents William H. Clark and Noah T. Clark.
   DYKMAN, J.

This is an appeal from a judgment in favor of the defendant Stover. The action was brought for the partition of real property which formerly belonged to Patrick Trenor, deceased. Trenor died in February, 1888, leaving a last will and testament, by which he devised the real property in question to Annie E. Stover. When the will was presented for probate to the surrogate of the county of New York, it was contested; and, at the close of the contest, the will was rejected, and probate thereof was refused. Thereupon this action was commenced for the partition of the property. The plaintiff and some of.the defendants are heirs at law of Patrick Trenor, deceased. The complaint is framed for the purpose of testing the validity of the will of Trenor, and contains an allegation that it is void and ineffectual. The defendant Annie E. Stover answered, and set up the will as a defense to the action, alleged its validity, and claimed the property as devisee under it. When the cause came on for trial, a question arose respecting the effect of the surrogate’s decree rejecting the will, and a stipulation was made that the jury which had been impaneled should be discharged, and, if the trial judge decided that the surrogate’s decree was not conclusive, then the issue touching the validity of the will should be tried before a jury at a subsequent term, and, if the judge decided that the decree was conclusive against the will, the plaintiff should prevail in the action. The decree of the surrogate and certain other papers -connected therewith were then received in evidence, and the decision respecting their effect was reserved. Subsequently the trial judge -decided that the decree of the surrogate was not conclusive against the validity of the will, and directed the issues respecting the same to be tried by a jury. Pursuant to that direction the cause was tried before a jury, and a verdict was rendered in favor of the defendant Stover, establishing the validity of the will. Upon this last trial the -counsel for the plaintiff offered in evidence the decree of the surrogate rejecting the will. The decree was excluded, and that exclusion presents the sole and only question involved upon this appeal. ->

A decree of a surrogate admitting to probate a will of real property establishes presumptively all the matters determined by the surrogate (Code Civ. Proc. § 2627); while a decree of a surrogate admitting to probate a will of personal property made is conclusive as an adjudication upon all questions legally determined by the surrogate (Id. § 2626). Such are the effects of surrogates’ decrees admitting wills to probate; but we are required now to ascertain and determine the effect of a decree rejecting a will of real property. The first impression upon the mind on the presentation of the question is that such a decree can have no legal effect upon the will as an instrument of title to land. That conclusion is reached naturally from the nature and character of the will. It becomes operative upon the death of the testator, and the title of the devisee to the land devised becomes vested at that time. A failure to propound the will for probate can have no effect upon such title, because it is derived from the will. Its probate would be of no avail except to supply presumptive evidence of its validity, and that may be repelled at any time by contrary proof. 2 Rev. St. p. 58, § 15. Wills of real property may be used to establish titles which they create in the same manner as deeds. In fact, they have sometimes been called “statutory conveyances.” They may be introduced in evidence, upon proper proof, in any action to recover the property devised or to defend the possession thereof. Norris v. Norris, 32 Hun, 176. A will may be read in evidence as an ancient instrument, when it has sufficient age and possession has been in accordance with it, without proof of its execution, the same as a deed. Greenl. Ev. § 21; Jackson v. Blanshan, 3 Johns. 294. The argument of the appellants is not only that the decree of the surrogate should have been received in evidence, but that it was res adjudicata and a final determination of the rights of the parties. The contention of the appellants, if successful, would deprive the devisee of the constitutional and common-law rights of trial by jury in respect to land devised by the will; and such deprivation is beyond the province even of the legislature. The foregoing views are supported by the decisions in the cases of Bogardus v. Clarke, 4 Paige, 623, and Harris v. Harris, 26 N. Y. 437.

Without further pursuit of the subject, our conclusion is that the judgment should be affirmed, with costs. All concur.  