#### LONG et al. v. RODGERS et al.

(Supreme Court, General Term, First Department.

July 13, 1894.)

Wills—Revocation of Probate—Action in Supreme Court.

Code Civ. Proc. § 2653a (added by Laws 1892, c. 591), providing that “any person interested in a will or codicil admitted to probate in this state * * * may cause the validity of the probate thereof to be determined in an action in the supreme court,” does not repeal section 2647, which provides that “a person interested in the estate” must apply for revocation of probate within one year, and therefore does not authorize an action to revoke probate after the lapse of the year, but is only intended to enable devisees to establish their titles to the land devised, as against testator’s heirs at law.

' Appeal from special term, New York county.

Action by Mary Foster Long and others against Marion L. Rodgers and others, impleaded with Charles H. Seymour, individually and as executor of George W. Long, deceased, to contest the validity of the probate of decedent’s will. F’rom an order restraining the executor from proceeding in the surrogate’s court for a judicial settlement of his accounts pending the action, defendants appeal.

Reversed..

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

H. M. Ward, for appellants.

H. H. Whitman, for respondents.

BARRETT, J.

The precise question here is whether, under section 2653a1 of the Code of Civil Procedure, enacted in 1892 (chapter 591), the next of kin of a testator can maintain an action in this court, after the expiration of one year from probate of the will, to have the invalidity of such probate determined. The injunction which was granted at special term restrained Mr. Seymour, as executor of the deceased, Long, from proceeding in the surrogate’s court with the judicial settlement of his accounts. These accounts had reference solely to the personalty. If, therefore, the probate of the will as a will of personal estate was, conclusive upon the plaintiffs after the lapse of one year, the executor was properly accounting when the injunction was granted. The question, then, *982is, did the legislature, in adding this new section (2653a) to the article of the Code entitled “Revocation of Probate,” intend to repeal the rest of the article, or at least to do away with all existing pro: visions as to the effect of probate after the lapse of one year? If it did not, then, clearly, the probate here was conclusive, for “a person interested in the estate” must apply for revocation within one year after the recording of the decree admitting the will to probate. Code Civ. Proc. § 2648. If such application is not made within one year, then, as to personal property, the probate concludes “all mankind.” Hoyt v. Hoyt, 112 N. Y. 505, 20 N. E. 402. As to the legislative intent, we think there can be no doubt. It was to afford relief where relief was needed, namely, with regard to real estate; not to uproot a system of long standing, and wholesome operation, with regard to personalty. The object was to expedite, not to protract, the settlement of estates. The mischief aimed at was plainly the inability, under existing law, to quiet titles to real estate. There was ho trouble about personalty. As to that, an estate could always be settled within a reasonable time after the expiration of the year. What was wanted was some way of making the probate conclusive as to realty within a reasonable time, and for this the new section provided. In Anderson v. Anderson, 112 N. Y 104, 19 N. E. 427, it was held that a devisee of the real estate, in possession of the property devised, could not maintain an action to establish the will against the heirs at law. The heirs could choose their own time to bring ejectment, and one by one, at varying epochs, could question the will. It was to remedy this evil, to enable persons interested in sustaining a will as to real estate to gather all possible contestants into one forum, and, in effect, to “conclude all mankind,” that the section in question was added. That section, it will be observed, was not enacted as an independent law, but was ingrafted upon the Code, following the sections regarding the “revocation of probate.” These sections were not repealed in express terms. On the contrary, though before the legislature, they were suffered to remain. This is apparent from the title of the act, which reads: “An act to amend article second, title three, of chapter eighteen of the Code of Civil Procedure, by adding thereto a new section to be known as section twenty-six hundred and fifty-three a.” 1 Laws 1892, p. 1136, c. 591. It is clear, therefore, that the intention was, in adding this section, to embrace it within the existing system, not to substitute it therefor; and . there is no inconsistency or irreconcilable repugnancy between the two systems when the mischief aimed at is advisedly considered. As to personalty, the function of the existing statutes continues, and the effect of probate, after lapse of a year, remains unaltered. This function does not conflict with the function of the new section, which operates upon real estate, and which affords a practical method of making that conclusive which otherwise would remain indefinitely presumptive. There is nothing in the phraseology of the new section which militates against this construction. It is true that we find these words therein: “It shall be tried by a jury and the verdict thereon shall be conclusive as to real or personal *983property,” etc. But this does not say that “a person interested in the estate of the decedent” shall not be otherwise concluded. Nor does it limit the effect of his failure to apply for revocation under sections 2647 and 2648 within the year. It may entitle “a person interested in the will” (which is the phrase used in the new section to indicate the person who may proceed thereunder), as distinguished from “a person interested in the estate” (which is the phrase used in section 2647), to bring the action to validate the will, even during the running of the year; but it certainly does not authorize a person who has omitted to apply for revocation within the year, and as against whom the probate has become conclusive, to inaugurate a fresh contest thereafter. We think the executor here was properly proceeding with his judicial accounting under the statute when this suit was instituted, and that he should not have been interfered with." The order appealed from should therefore be reversed, with $10 costs and disbursements, and the injunction dissolved, with $10 costs.

VAN BRUNT, P. J., concurs.

FOLLETT, J.

Under section 2653a, I think an action can be maintained to set aside or to establish the probate of a will. Otherwise I concur.

1

 Section 2653a is as follows: Any person interested in a will or codicil admitted to probate in this state, as provided by the Code of Civil Procedure, may cause the validity of the probate thereof to be determined in an. action in the supreme court of the county in which such probate was had.