#### Zouve J. Wadsworth and Others, Appellants, *v.*E. Elizabeth Hinchcliff and Others, Respondents.

Fourth Department,

July 7, 1914.

Will — conclusiveness of decree of surrogate admitting will to probate — action under section 2663a of the Code of Civil Procedure — right to trial by jury.

A decree of a surrogate admitting a will to probate is conclusive as an adjudication of the validity of the will in a subsequent action for partition and incidentally to set aside the will.

*267If an heir at law desires to challenge the effect of a decree of the Surrogate’s Court admitting a will to probate, he must bring an action under section 2653a of the Code of Civil Procedure.

The right to a trial by jury of the validity of a will is amply protected by said section 2653a.

Appeal by the plaintiffs, Zouve J. Wadsworth and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 15th day of January, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiffs’ case, upon a trial before the court and a jury and the Oneida Trial Term.

*Henry F. Coupe*and *James Coupe,*for the appellants.

*W. A. Matteson*and *George Dennison,*for the respondents.

Kruse, P. J.:

The action is by certain heirs at law of Frank G-. Wadsworth, late of the city of Utica, deceased, for the partition of real estate situate in that city, and incidentally to set aside his will, in which the defendant E. Elizabeth Hinchcliff is named the residuary legatee and devisee; and also a deed made by him to her, purporting to convey the premises which are the subject of this action. The will is dated December 30, 1912, and" the deed March 22, 1913.

It is contended by the plaintiffs, and so alleged in their complaint, that the deceased was not of sound mind, or mentally capable of making a will, and that the paper writing purporting to be his will was not freely or voluntarily executed by him., but obtained by fraud and ■undue influence upon the decedent by the said E. Elizabeth Hinchcliff and others acting in her behalf; and that the deed of conveyance was likewise obtained with the intent and for the purpose of cheating and defrauding the heirs at law of the deceased, and under circumstances, the details of which are set forth, which, if true, make the deed void and of no effect.

The legal question presented is whether the surrogate’s decree admitting to probate the will is conclusive as an adjudication of the validity of the will. Section 2625 of the Code of Civil *268Procedure, as amended by chapter 578 of the Laws of 1910, provides that such a decree shall have that effect, except as in chapter 18 of the Code otherwise provided. Section 2653a is contained in that chapter, and provides for determining the validity of a will by a jury trial in an action in the Supreme Court. The learned trial judge held that the decree was conclusive, but offered to entertain an application to amend the complaint so as to bring the action within the provisions of section 2653a. The plaintiffs did not choose to avail themselves of that offer, and thereupon the complaint was dismissed.

In passing, it may be stated that if the decree admitting the will to probate is conclusive upon the question of the validity of the will, it becomes unimportant whether the deed is void or ■ not, since the will prevents the plaintiffs from taking title to the property as heirs at law.

Plaintiffs contend (1) that the provision contained in section 1537 of the Code of Civil Procedure, which permits an heir at - law in an action for partition to attack an apparent devise of the real estate to another by the decedent, and establish the invalidity of the devise, is not affected by section 2625 as amended in 1910; and (2) that if section 2625 is to be construed as having the effect of making such a decree conclusive as an adjudication of the validity of the will, it contravenes section 2 of article 1 of the State Constitution, which provides that trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.

While the chapter of the Code of Civil Procedure relating to Surrogate’s Court (Chap. 18) contains a general provision requiring the trial by jury upon seasonable demand of such questions as either party has the constitutional right to be tried by a jury (§§ 2472a, 2547, as respectively added and amd. by Laws of 1910, chap. 576), there is no provision in that chapter for a trial by jury, except where a case is sent back by an appellate court (§ 2588), and in an action under section 2653a; although the Legislature at its last session, in the Surrogate’s Practice Act (Laws of 1914, chap. 443, effective September 1, 1914), has provided for a jury in the Surrogate’s Court (Code Civ. Proc. §§ 2537, 2538, 2539, 2540), for the trial of such questions as properly belong to that court, and besides makes *269every decree of a Surrogate’s Court conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained. (Id. § 2550.)

We had occasion to examine the amendatory act of 1910 in *Matter of Fischer*(153 App. Div. 603). While the question there decided was not precisely the same as in the case in hand, the amendatory act was broadly discussed by the late Presiding Justice McLennan, and the conclusion there reached was that it was the intent of the Legislature to accomplish the changes recommended by the committee of the Bar Association,- among others that of making the decree of the surrogate admitting a wül to probate conclusive, whether the will relates to real or personal property, unless an action is brought in the Supreme Court, as provided by section 2653a.

Assuming, without deciding, that the constitutional right of trial by jury applies to a judicial contest by an heir at law of an apparent devise of real estate, I think that right is amply protected by section 2653a, which expressly provides for trying the validity of a will by a jury. If parties neglect to avail themselves of that remedy, I do not see how it can be justly said that the Legislature has failed to preserve the right of trial by jury. If an heir at law desires to challenge the effect of a decree of the Surrogate’s Court admitting the will to probate, I think he must resort to an action under section 2653a, otherwise he is concluded. The reason for requiring such a course of procedure is obvious. In an action under section 2653a all of the parties interested in the will or affected thereby are brought into court and the question of its validity determined in that action as to all the parties, instead of trying the question over and over again, as has been so often done heretofore.

Heither do I think that the omission to expressly repeal the provision for attacking an apparent devise in an action of partition has the effect of excepting that provision from the con- ■ elusive nature of the decree, as declared by section 2625 of the Code. The change effected by the act of 1910 is to make the decree of the surrogate admitting the will to probate conclusive as an adjudication, subject to an action under section 2653a, while theretofore such a decree, as to real estate, established presumptively only its validity. (See Code Civ. Proc. § 2627, *270as amd. by Laws of 1881, chap. 585; repealed by Laws of 1910, chap. 578, § 2.) Where a will has not been admitted to probate, an apparent devise is still open to attack as heretofore.

I think the case was correctly decided, and that the judgment should be affirmed with costs.

All concurred.

Judgment affirmed, with costs.