#### In re LAW.

(Supreme Court, Appellate Division, First Department.

February 13, 1903.)

1. Wills — Proof—Surrogate’s Court — Jurisdiction.

Under Code Civ. Proe. § 2620, providing that, where a written will is proved as prescribed in such section, it must be filed and remain in the surrogate’s office, etc., the surrogate' has no power to admit to probate the will of a resident decedent which had been probated in another state, and therefore cannot be produced and filed in the surrogate’s office, but such will.must be established by an action as authorized by section 1861.

Appeal from surrogate’s court, New York county.

Application by William W. Law for the probate of the will of John S. Law, deceased. From a surrogate’s decree dismissing the proceeding, petitioner appeals.

Affirmed.

See 67 N. Y. Supp. 857.

John S. Law died on the 25th day of August, 1893, at Greenwich, in the state of Connecticut, leaving a last will and testament, which related to both real and personal property. After the decease of the testator, his widow presented a petition for the probate of his will to the probate court in the state of Connecticut, where the will was admitted to probate as the will of a- domiciled resident of that state. On January 23, 1900, a grandson of the testator, who was not a party to the Connecticut proceeding, brought a proceeding in the surrogate’s court of New York county to have the last will and testament of said John S. Law, deceased, admitted to probate; alleging in his petition, among other usual jurisdictional facts, that the deceased was a domiciled resident of the state and county of New York. The contestants, in their *411answer thereto, admitted the validity of the will, but denied that the deceased was a resident of the state of New York at the time of his death, and set up the fact of the probating of the will in the state of Connecticut as a bar to further proceedings in the state of New York. The surrogate’s court dismissed the proceeding on the ground that the Connecticut proceeding was res ad judicata, and a bar to any proceedings in the New York surrogate’s court, and a decree was thereupon entered accordingly. From such decree the proponent appealed to the appellate division, which latter court reversed the decree, and remanded the proceeding to the surrogate for a further hearing. 56 App. Div. 454, 67 N. Y. Supp. 857. . In the new hearing before the surrogate, he rendered a decision wherein he found that the testator, John S. Law, died at Greenwich, in the state of Connecticut, but that at the time of his death he was a resident of the county and state of New York; that he left a last will and testament, which is now in custody of the probate court of Greenwich, Conn., and which was not produced before the surrogate’s court of New York county. As matter of law, the surrogate found, among other things, that the said surrogate’s court of New York county has jurisdiction of the estate of said deceased; that the said last will and testament cannot be probated in this proceeding, as the original instrument was not produced before the court upon the hearing; and therefore the proceedings were dismissed. From the decree thereupon entered, this appeal is taken.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Wm. H. Cochran, for appellant.

J. J. Karbry O’Kennedy, for respondent.

HATCH, J.

It is not essential to a disposition of this case that we follow the argument of the learned counsel for the appellant in his discussion of the probate jurisdiction conferred upon the surrogate by the several provisions of the Code of Civil Procedure, or of the authorities bearing thereon, both before and since their enactment. No useful purpose would be served by so doing. The question as to whether the will of an inhabitant of this state, made and executed herein, can be admitted to probate by the surrogate without the production of the will itself, is settled by decisive authority. In Matter of Cameron, 47 App. Div. 120, 62 N. Y. Supp. 187, it was said, “The implication of the first subdivision of section 1861 and of section 2620 of the Code of Civil Procedure is that the surrogate cannot admit such a will to probate.” This decision was affirmed in the court of appeals upon the opinion below. 166 N. Y. 610, 59 N. E. 1120. The fact that m the Cameron Case, supra, the surrogate found that he was not satisfied from the evidence that any such will was in existence, did not affect at all the question of the power to admit to probate if not produced. While- it is true that in that case the application was for the issuance of letters of administration upon the estate of the decedent, yet upon the hearing before the surrogate the appellant therein asked for a commission to take additional testimony in Chicago as to the original instruments, their custody, and the proceedings for their probate. This application was denied, and the question raised thereby was presented for determination. Consequently the question as to the power of the surrogate in the premises was directly involved, and it was thought that such ruling was proper, for the reason that without the production of the will the surrogate had no power to admit it to probate. Nor could it be established by the issuance of a commission, *412for the reason that the witnesses to the instrument involved in the pro- '• ceeding resided within the state of New York, and therefore could not be produced before the commissioner to take such proof. For both these reasons the ruling of the surrogate was sustained. The court cites Russell v. Hartt, 87 N. Y. 19, and Matter of Delaplaine, 45 Hun, 225, as authorities showing that, under the circumstances pre sented by these cases, a will may be established by producing the same before a commissioner appointed to take testimony for that purpose, when the production of the will before the commissioner is deemed, in law1, to be the production of the same before the surrogate. If is evident that the court in the Cameron Case, supra, did not intend to lay down any different rule from1 that which had been announced in the cases which it cites as authority. It simply announced the doctrine determined therein. In Russell v. Hartt, supra, it was held that where a testator, not an inhabitant of this state, died, leaving assets within the jurisdiction of the surrogate, proof might be taken of a will by interposition of a commission, where the original will was in the possession of a court or tribunal of another country, and could not be physically produced. Matter of Delaplaine, supra, was decided upon the au-1 thority of this case, and does not extend its doctrine.

In the case before us the will has been probated in the state of Connecticut. The testator was an inhabitant of this state. The will was executed herein, and the witnesses to the will and codicil all reside in the state of New York. It is evident, therefore, that under such circumstances the will could not be established before a commissioner, as the proponent would be confronted with the same difficulty as existed in Matter of Cameron, supra. While it is true that wills may be admitted to probate, which have been lost or destroyed, yet, where a written will is established, having a present physical existence, it is required by the provisions of section 2620 of the Code of Civil Procedure to be produced before the surrogate, and it must be filed and remain in the surrogate’s office. The will established by the petitioner in the present case, and found by the surrogate to exist, is a written will, having a present existence; and, under the provisions of this section, it must be produced and be filed in the surrogate’s office when it is admitted to probate. The cases which we have cited clearly so recognize.

This conclusion is strengthened by the provisions of section 1861 of the Code of Civil Procedure, which authorizes an action to establish or impeach a will under the following circumstances:

> “(1) Where a will of real or personal property, or both, has been executed, in such manner and under such circumstances, that it might under the laws of the state, be admitted to probate in the surrogate’s court; but the original will is in another state or country under such circumstances that it cannot be obtained for that "purpose; or has been lost or destroyed, by accident or design, before it was duly proved and recorded within the state.”

This section clearly contemplates the existence of a condition such as the present case presents, and therefore an action might lie to establish this will. Younger v. Duffie, 94 N. Y. 535, 46 Am. Rep. 156. If it were an original question, we should not hesitate to hold, in the case of a will made by an inhabitant of this state, and executed within its jurisdiction, that "it cannot be probated without the physical produc*413tian of the will, where such will is in writing and in existence. The authorities which we have cited are conclusive in support of this doctrine.

It follows that the decree of the surrogate should be affirmed, with costs. All concur.