#### In the Matter of the Application of Mary B. Wood for the revocation of letters testamentary issued to Edward T. Schenck.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

1. Wills—Jurisdiction.

Jurisdiction to declare a codicil to a will void upon the ground of a want of testamentary capacity is vested solely in the surrogate’s court. The supreme court has no such power.

2. Surrogate’s court—Yacation op letters testamentary.

Under § 2481, subd. 6, Code Civ. Pro., the surrogate has the same power as courts of record over the judgments and decrees of his court, and he may vacate letters testamentary issued upon a false suggestion of facts.

3. Same.

A will was admitted to probate, and upon a contest its codicil. The will appointed S. executor; the codicil revoked this. An appeal was taken from the decree admitting the codicil to probate. The general term affirmed the decree, and thereafter the court of appeals as well. While ■ the appeal was before the general term an action was begun in the supreme court, in which a judgment was taken, practically by default, declaring the codicil void. Upon the faith of this judgment letters were issued to S. *Feld,*that the surrogate had power to revoke, and properly revoked such letters.

Appeal from an order of the surrogate’s court revoking letters testamentary.

*B. B. Valentine,*for resp’t; *B. S. Schenck,*for app’lt.

’Yak Brunt, P. J.

A will and codicil of the testator, Samuel Wood, were offered for probate in the surrogate’s court of the county of ¡New York.

The will was proved without opposition. In it the probate of the codicil was the subject of objection and contest, which resulted in the codicil being admitted to probate by the surrogate in December, 1881, Schenck being a party to the record, having just filed objections and then withdrawn them. By the will the appellant Schenck was appointed executor, and by the codicil he was removed.

An appeal was taken to the general term from the decree of *299the surrogate admitting the codicil to probate, and in May, 1888, the general term affirmed the decree thus appealed from.

In the year 1884, and before the order had been entered upon the decision of the general term, an action was commenced in the supreme court, in Queens county, by Alfred L. Simonson and Martin Wood against Edward T. Schenck, Joseph W. Drexel, C. Amory Stevens and Henry Gf. Marquand, asking in the complaint, among other things, that the said codicil be declared void

Hone of the defendants appeared in that action, except the defendant Schenck, who answered admitting all the facts alleged in the complaint

An order of reference was made, and the referee reported, among other things, that the said Samuel Wood had not at the time of the execution of the codicil testamentary capacity, and thereupon a decree was entered on the 24th of June, 1885, declaring the said codicil null and void, for the reason that the said Samuel Wood did not have testamentary capacity to make the same, and that the execution thereof was procured by fraud.

In the meantime an appeal had been taken from the order of the general term affirming the surrogate’s decree admitting the said codicil to probate.

Upon the 19th day of October, 1885, letters testamentary upon the said will were issued to the appellant, Schenck, and said will was recorded without the codicil. The order of the general term, affirming the refusal of the surrogate to admit the codicil to probate, was afterwards affirmed by the court of appeals.

The petitioner setting up these facts applied to the surrogate for a revocation of the letters testamentary issued to Schenck because they were produced by a false suggestion of facts.

The answer of the appellant Schenck admits all the facts above stated except that he was a party to the contest of the codicil in the surrogate’s court.

The surrogate thereupon revoked the said letters and from the order of revocation this appeal is taken.

A question has been raised as to whether the petitioner had such an interest in the estate of Samuel Wood so as to authorize her to initiate this proceeding. We have not discussed this question because we are of the opinion that the surrogate had ample power if these letters have been issued without any authority of law to revoke the same upon his own motion after having duly heard the parties. Section 2481, subd. 6, gives the surrogate the same power over the judgments and decrees of his court as is possessed by courts of record and the power of such courts to vacate unauthorized judgments upon proper notice to the parties to be affected has never been questioned.

The supreme court had no jurisdiction whatever to entertain an action to declare the codicil to this will null and void because of the want of testamentary capacity. Such jurisdiction belonged exclusively to the surrogate’s court and has been exercised, and therefore the decree obtained in Queens county was absolutely void and of no effect.

It appearing go the surrogate that this codicil had been declared *300valid by a court of competent jurisdiction and having all the parties before it and that the same codicil had subsequently been declared invalid by a court having no jurisdiction of the subject matter and with but few of the parties interested before it, and that upon the faith of this void adjudication letters had been issued to a party having no right to the same, it became the duty of the surrogate to revoke such letters as issued without any authority of law.

The order appealed from should be affirmed, with costs.

- Brady and Daniels, JJ., concur.