#### In the Matter of the Estate of Elizabeth S. Eaton, Deceased. Susan C. Higgins and Willis S. Watkins, as Administrator with the Will Annexed of Elizabeth S. Eaton, Deceased, Appellants; Hervey E. Eaton, as Executor, etc., of Elizabeth S. Eaton, Deceased, and Others, Respondents.

Third Department,

November 12, 1913.

Judgment—res adjudicata — final decision of United States court — decree of Surrogate’s Court allowing probate from which no appeal has been taken.

Where upon an appeal from a decree of a Surrogate’s Court it appears that the matters in dispute have been finally settled by the United States Circuit Court of Appeals, upon the application of the appellants, the decision of such court is *res adjudicata.*

A decree of the Surrogate’s Court, admitting a will to probate from which the contestant has not appealed, is final and binding and cannot be thereafter reviewed.

Appeal by Susan 0. Higgins and another from two decrees of the Surrogate’s Court of the county of Madison, entered in the office of said surrogate on the 30th day of December, 1912, one denying certain relief to the petitioner Susan C. Higgins, and the other granting relief to the petitioners Genevieve S. Jacobs and another.

*John A. Johnson [A. F. Freeman, B. M. Thompson, Ralph Phelps*and *Orla B. Taylor*of counsel], for the appellants.

*Everett E. Risley [James H. Merwin*of counsel], for the respondents Jacobs.

*Carlos J. Coleman,*for the respondent Eaton as executor.

Howard, J.:

The testatrix by the 6th clause of her will undertook to provide for a mute brother. She bequeathed as follows: “ *Sixth.*I give and bequeath to my sister, Susan C. Storms, during the term of her natural life, from the income of my estate, one hundred dollars per month, provided and on condition that she cares for and makes ahorne for my mute brother, George Albert Storms, during his lifetime.” Conditions hav*8ing changed, the testatrix undertook subsequently by codicil to make other and different provisions for the brother. The material part of the codicil reads: “ Whereas my brother George A. Storms is unable to care for himself through physical defects and infirmities, it is my wish that my sister Genevieve S. Jacobs and her husband Nathaniel P. Jacobs, do so care for him and make his home with them during the term of his natural life and that they shall receive the sum of seventy-five dollars ($75.00) per month compensation during that time. In the event of his death before that of Genevieve S. Jacobs or Susan S. Higgins I direct that they shall share alike with the other heirs, in the general and final distribution of my estate.” The testatrix was a resident of Ann Arbor, Mich.; her property was located in Madison county in the State of New York. After her death the executor named in her will petitioned the Surrogate’s Court of Madison county for probáte of the will. Susan 0. Higgins, formerly Storms, the person mentioned in the 6th clause, was cited to appear and did appear and did contest the probate; but the will, also the codicil, were admitted to probate. Subsequently, on petition of Mrs. Higgins and others, letters of administration, with the will, but not the codicil, annexed were issued in Michigan; the will before the Michigan Probate Court being an exemplified copy of the original will filed in Madison county. Afterwards the Michigan administrator, and later Mrs. Higgins, brought suit in the United States Circuit Court to endeavor to establish that the Michigan decree of probate took precedence over the Madison county decree. At last, in Mrs. Higgins’ suit, it was decreed by the United States Circuit Court of Appeals, reversing the Circuit Court, that the Madison county decree took precedence over the Michigan decree so far as concerns property in New York; also, that the codicil did away with the 6th clause of the will. An attempt to go to the United States Supreme Court with this determination for review was denied, so that the adjudication is final. In the United States Circuit Court Mrs. Higgins was successful and procured a decree that she was entitled to her legacy of $100 per month; also that the Michigan decree of probate took precedence over the Madison county decree. While she was yet successful, and before her *9decree was reversed, she instituted a proceeding in the Madison County Surrogate’s Court (the United States court having no power to enforce its decree) to get her legacy and otherwise enforce the decree of the United States Circuit Court. That part of her petition wherein she prayed to have the Michigan decree declared superior to the Madison county decree was denied, and that part wherein she asked to have her legacy paid over to her by the executor was granted, but subject to the condition that the United States Circuit Court decree be, in this respect, affirmed and finally established. It was not affirmed, as has been seen, but was reversed. (See *Higgins*v. Eaton, 183 Fed. Eep. 388; 188 id. 938; 202 id. 75.) The matter before us is an appeal from the Madison county surrogate’s decree. An appeal from another decree of the same court wherein relief was granted to the Jacobs under the codicil is also before us.

It is conceded by all parties concerned herein that the United States courts had jurisdiction to hear and determine the suit concerning this subject-matter. Having jurisdiction and having made an adjudication their determination is beyond all doubt *res adjudicata.*Whatever they determined is the law, binding upon this court, binding upon all the litigants, surely binding upon Mrs. Higgins who chose the forum. To hold otherwise would be to make all the proceedings in the United States courts a nullity. And the situation here is doubly *res adjudicata.*Mrs. Higgins contested the probate of the will before the Madison County Surrogate’s Court and she' was beaten; but she did not appeal. This determination, therefore, became final and binding upon her and upon everybody, and nothing determined there can be reviewed here. It is unnecessary to cite authorities to sustain this proposition; the law is well known.

Believing as we do that the doctrine of *res adjudicata*is controlling on this controversy, we think it unnecessary to discuss any of the other points presented, for whatever views we may entertain concerning the “comity of nations,” primary and ancillary probate proceedings, the precedence or otherwise of the domiciliary court over the Madison County Surrogate’s Court, or the effect of the codicil upon the 6th clause of the *10will, are of no moment now. If the questions presented have been litigated and decided in courts having jurisdiction, that is the end of it.

It might he well to add that there is absolutely no equity in the Higgins attitude. The surrogate was amazed at her attitude, for in his opinion he exclaims: *“*It seems strange to contemplate that there are but two objects in view, sought to be attained as the result of all of the litigation, and I have not referred to more than one-half of it, carried on over this estate, viz: to defeat the right of the Jacobs to get $15.00 a month for George Albert Storms, who lived with them, and to get all of this property into the State of Michigan.” These persistent lawsuits have been fought principally to get this money of the deceased out of New York into Michigan. No wrong has ever been impending, no jeopardy to the rights of anybody has ever been threatened, but this contest has been a “ tug of war ” over the estate between the Michigan forces, who were the aggressors, and the New York forces, with no good to he accomplished to anybody no matter which won.

Both decrees of the surrogate should be affirmed, with costs against the appellant in each instance.

Decree dated December 23, 1912, unanimously affirmed, with costs against the appellant.