#### In the Matter of Proving the Last Will and Testament of George W. Horton, Deceased. Alice M. Horton, Contestant, Appellant; Jane Ann Dickie, Proponent, Respondent.

Second Department,

June 12, 1914.

Will—probate — commission to take proof of later will executed and probated in foreign State — admissibility of certified copy of foreign will.

Where, on a proceeding for the probate of a will, it appears that a later will was executed by the testator and has been admitted to probate in another State which, if properly presented, may overthrow the prior will, a commission should be issued to take proof thereof.

*214In such case the commissioner is considered as an officer of the court, and the production of the will before him will be held to be before the court.

Appeal by the contestant, Alice M. Horton, from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said surrogate on the 12th day of January, 1914, admitting to probate the paper propounded as and for the last will and testament of George W. Horton, deceased.

*M. Linn Bruce[William H. Sommer*with him on the brief], for the appellant.

*Henry G. K. Heath,*for the respondent.

Jenks, P. J.:

When Jane Dickie, as executor, offered the will of Horton for probate in the county of Westchester, showing that Horton left realty and personalty in said county and alleging that he was a resident therein, Alice Horton, who was cited as wife, appeared, objected to the probate and answered that she and Horton had intermarried in 1912; that the will offered was not the last will • of Horton, forasmuch as it was made in 1902 and he had made another will in 1913. She set forth a copy of the latter and of its attestation clause. And she answered further that Horton when he died was a resident of Ohio; that the said will was duly probated in a probate court of that State and that she had been appointed and was the executoi thereof. The latter will is not only contrary to but contradictory of the earlier will, and expressly revokes and annuls all former wills. On the hearing, Jane Dickie produced testimony and prayed for probate. Alice Horton produced an exemplified copy of the will of 1913 and record of the probate thereof in the probate court of Ohio. Jane Dickie and others of similar interest objected that the said probate court of Ohio had no jurisdiction of the heirs of Horton who resided in New *Y*ork, and insisted that they were not bound by the proceedings in the Ohio court. The objection was sustained under exception. An exemplified copy of the will and of the probate thereof were marked for identification. The learned surrogate ruled: *“*So far as this exemplified copy. I am satisfied these people *215are not bound by it. There is nothing before me that shows me there is another will in existence. I give him *[i.*the counsel for Alice Horton] an adjournment of two weeks to amend his answer or proceed in the regular way.” Thereupon Alice Horton offered a certified copy or exemplified copy of the letters testamentary issued on the probate proceedings in the Probate Court of Lake county, 0. This was objected to on the same grounds and excluded under exception. Exemplified copy of the letters testamentary was marked by the contestant for identification. At the adjourned day the petitioner moved for probate of the will of 1902, and offered a certain stipulation as to the provisions of the Ohio statutes and their interpretation. Alice Horton then offered so much of a proponent’s exhibit as “contains certified copy of a will of George W. Horton, purporting to have been executed on the eighth day of August, 1913, being contained in an exemplified copy of the record of probate of said purported will of George W. Horton in Probate Court of Lake County, Ohio, September 16, 1913, Clarke H. Nye, Probate Judge.” This was objected to, in that there was offered only a portion of an exemplified document, in that it was a copy of a paper writing purporting to be a paper that is not binding on the parties in this State, but that the original should be offered, also in that it appeared from the full paper that the parties in this State have not been served with process in the jurisdiction of the court; and also in that it was nothing more than a paper writing and it does not go beyond that as it is now offered; and finally on the ground of immateriality and irrelevance. The surrogate ruled: “There is no question but that a certified copy of a deed or mortgage recorded in this State is admissible in evidence in this court. There is some question, however, as to the admissibility of a certified copy of a will which was proved or recorded in a foreign State, especially where no notice was given to the heirs at law and next of kin, as in this case. I doubt its admissibility.” The objection was sustained under exception. And it also appeared on the record that Horton in vain had applied to the said probate court of Ohio to take from its files the original will of 1913. Both sides rested. And thereafter *216the surrogate filed findings of fact and conclusions of law in favor of the admission of the will of 1902. The decree followed, and contained a provision “That the objections contained in the answer of the contestant, Alice M. Horton, be dismissed as unproven and unsustained.”

This controversy is not altogether like unto one between living litigants with an issue of original rights of *meum*and *tuum.*For here the rights in dispute are in the property of another, derivative from his disposition to be effective after his death. And the State has covenanted with the dead that it will see to it that his disposition shall prevail. The paramount consideration of the courts is to maintain this covenant. The learned Surrogate’s Court was apprised, and we are apprised in this case by pleading and by contention serious and substantial, that this testator left a will executed in 1913, and that thereby he specifically revoked and annulled all previous wills. It is the last utterance of the testator that is heeded, for this power of testamentation is ambulatory, I think that there should be every opportunity to establish such will in. this proceeding. The learned surrogate commendably continued the proceedings. It was not to be expected that he should prolong continuance indefinitely. But the important consideration is, not whether the contestant did, but whether the contestant could have presented a will which as pleaded revoked the earlier will. (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 34.) I have suggested considerations which take this kind of case out of the category of litigations wherein courts must decree to the swift and to the vigilant according to the procedure prescribed. If it be the fact that the final will, at least final as to the will of 1902, of this testator exist, but was filed, and now remains in another State, and yet such will, if before this surrogate or this court, may overthrow the will of 1902,1 think that a commission should be issued to take proof of the later will. In such case the commissioner is considered as an officer of the court, and the production of the will before him would be held to be before the court in the person of the commissioner. If, as the result of such procedure, the alleged will is proved in this Surrogate’s Court, then the Surrogate’s Court can proceed *217to the determination whether the will of 1902 or that of 1913 should prevail.

This practice is supported by *Spratt*v. *Syms*(104 App. Div. 232), *Russell*v. *Hartt*(87 N. Y. 19), *Matter of Delaplaine*(45 Hun, 225) and *Matter of Cameron*(47 App. Div. 120; affd., 166 N. Y. 610). I think that our disposition of this case is within our powers in appeals from the Surrogates’ Courts. (Code Civ. Proc. §§ 2586, 2587. See, too, Redfield’s Law & Practice of Surrogates’ Courts [7th ed.], §§ 1144, 1145; Jessup’s Surrogate Practice [4th ed.], 196-219; Heaton’s Surrogates’ Courts, §§ 1242, 1243.)

The decree should be reversed, without costs, and proceedings remitted to the Surrogate’s Court of Westchester county, to be continued in accord with this opinion.

Burr, Carr, Stapleton and Putnam, JJ., concurred.

Decree of the Surrogate’s Court of Westchester county reversed, without costs, and proceedings remitted to said court to be continued in accord with opinion.