The New York herald., 1876-07-12


page BIG. The authority above cited in the Kellum
VIII, 90 Barbour does not sustain he principle urged
by counsel Tor the executors and executrx. There
IS no ntmaiion IN the decisions that the Sur.
rogate has not the power to open a decree
OF probate OF Will OF real The learned Judge
in that case holds that the effect OF probate of will
OF personal property and OF real estac differs; as "a
real estate, is lot conclusive either the validity
or due execution OF the Will but as to the probate OF
VIII ot personal property II is conclusive until the
same be reversed on appeal. revoked by the Surro-
gate ia the msnner provided by the statute the will
be declared void By competent tribunal Tho Judge
also states the reason why the case tho satute
provides for the making Of allegations within one year
while there Is no provision OF that kind respecting
Will oil real estate but there is intimation in the
opinion OF that Court that the Surrogate has tho
modify will OF either kind
The authorizes ABOVE considered leave no rensona-
BILE doubt in my mind that this Court has the power
in proper casc 10 set aside, open, vacate modify
the order or decree admitting awill OF real estate to
probate
But If any such doubt existed prior to the act OF
1870 chapter 359 II seems 10 be fully removed BY tho
language Of the FIRST lection of hat made applicable
to the Surrogate Court OF tie city OF New York tho
latter clause of which reads as follows And tho
said Surrogate shall have The same power 10 set aside
Open vacat~ modify orders DEGREES of the said
court, as rs exercised by courts Of record OF general
jurisdiction" The terms and scope az this power are
certainly very ample That courts Of general Jurisdic-
tion have power To set aside. open, vacae modify
the orders or decrecs Is presupposed by the section
in question, and II is a power which is gen.
ing mistake, and relieving against fraud, Sc,
and understand tho power conferred by
tho section last named TO be equal TO that exercised by
Court Of Equity on bill filed tor tho purpose OF
obtaining rcllei against Judgment or decree Tor fraud
or mistake.
ln the matter OF Bricks estate after most exhaust
i've discussion OF ,hc question, Chief Justice DAILY 1
Howard IL at page 36 concludes as folows.-"rhat
the courts may Undo what has been done through
fraud. upon the suppositIon that they had jurls-
dction or upon the assumption that tho party
dead, who is living, that there wi-or they
may DEGREES taken by default correct mistakes
the result OF oversight accident y These all
powers existing OF necessity, and indispensable to the
adminstr .tioD ol justice, under which may be EN-.
braccd any other exercise OF jurisdiction OF like
nature character And this decision, be II
Having reached the conclusion that have
tho power to entertain the petition In this matter
becomes necessary 10 determine whether the petit
tionor may invoke that power as IA legal right or
whether he addresses himself TO the discretion OF the
Court which discretion should be exercised with just
regard to the interests OF the respective parties From
examination OF the authorities on the sub.
ject OF of 1870 am persuaded that this De-
titon should regarded an appeal to the
OF this Court and hot as matter OF absolute right II
should appear rs part OF the record that the decree
sought to be vacated was absolutely void, 1t ia
mo that the opening or setting aside OF such decree
would be matter OF discretion. the refusal OF which
would be justifabc ana would not bo reversed mp.
peal while IN clear case OF equity uncontradictcd
though addressed to the discretion OF the Court II do
MED, II would be reversed appeal 1t Is objocted by
the petitioners counsel that tho surrogate this
ter obtained no jurisdiction tor the purpose OF admit
ting The will IN question TO probate because of the al
legged existence OF hsirsatIaw not cited, and that
therefore, the decroc is absolutely void.
Without at present pa sing upon the question whether
decree absolutely vold is Tor any purpose obsruc.
too to tho the neg cd rights the pe-
titioner 1t is sufficient say that prccf fur.
nshed 10 the Surrogate in this he obtained jurs.
diction over the probate OF the will It. as must as.
sumo Tor the purpose OF this proceeding the petitioner
Is an heir 1t cannot be denied that by tho scItcd prac.
ice OF This Court he entitled TO opportunity
resist the probate oil the will Ia question: and that II his
relation 10 the testaOr had been known recognized
before the probate OF the Will he would have been In
cluded In the citations and afforded opportunity oi
being present at the probate and he had been next
OF kin, so as to have entitled him. but for the Will, TO
share OF the personal property, there would be no
doubt OF his right 10 opening OF thc probate, far
as the instrument propounded was will OF personal
property is concerned rhe cases Of the Public Ad-
mnistraior VS. Peters, Bradford, 100; skidmore
Davies, 10 Paige, 316 vrccdenburg Cali, Paige,
III; Bloom VS. Burdick, iIill, l30; Corwn VS.
T w. 49, s;i S,bcy vs. W"ic SnS1Hsn 10 "s'i Y iso
cited by the counsel or the petitioner to sustain
his right TO such an opening of the decree; but is
claimed on the part OF the counsel for the
and exccurix that as tins application is addressed to
the discretion of the Court ITS may well be
denied. because of the dncrcnco the effect OF the
probate OF VIII relating to personal property and
relating to real estate and this brings 10
the consideration OF the final and more in
portant question ngOved this proceed.
ing II Is entIrely clear that this Court has power
to grant TO the petitioners any affirmative relief by
which their rights to The real estate in question may be
Determined. II The probate should be opened would
the petitioner be IN any better position to enforce hls
alleged claim to the real estate left by tho
testaior tn IN he would if the probate remain cd;
he must take proceedings another by eject
ment or partition and must there show that he Is an
heir entitled, and when he has shown that tho produc
tiOn Of the probate would not DO pripsd rdcie
evidence against his right unless the party nterpong
the probate as an obstacle 10 tho petitioners CLAIM
could show aifrmativcy that the petitioner was duly
cited on tho probate and II he we're so cIed under
well settled authorities In such he could attack
the validity the will as though IL wero never proved
Again. suppose the will had not been proved and the
heir should bring cjectmen he would have to produce
evidence OF his title and the devised In the will
would be compelled 70 produce the WILL with sufficient
evidence OF ITS duo execution so that in event,
the opening OF the decree would relieve the peti.
OF his t,tle but II would add somewhat the burthcn
Of the deviscc pro, ing the execution OF the will II
was urged by counsel for the petitioner that under the
statute of 1870 already cited there authority
fer the claimant TO raise the question to The absence
OF jurisdiction OF tho Surrogate to probate the will
cept by application 10 the Court 10 open vacat
the probate because he WAS not party TO the pro-
cccdings and would, therefore, have no standing to
appeal On careful consideration OF this objection
inclined 10 the opinion that any objection to jurs
dle'on or otherwise n respect TO inc probate OF ns
DO raised in proceeding instituted for the purpose
OF enforcing claim TO tho real estate and that the
statute OF 1870 would hot affect person who not
made party to the probate.
IL Is to my MUD entirely clear that In every pro
cceding and in all stages OF action, appeal
the question Of jurisdiction may be raised and must be
met On the argument IL was urged by counsel for the
executors and cxccutx that the moving papers did no,
show probable ground for denial OF the probate otho
will IN question II opened because Of tho mprobabity
OF Mr. Hilton influencing Mr. Stewart to devise h,
real estate 10 his WIFE, who would seem TO have The ocs
right to It, while Mr. Hilton as he was not interested
in tho real estntc, appcors TO have had no motive
Tor the exercise Of sucn influence. but 10
this It would be unprecedented
well unjust for this Court in passing on prclim.
mary motion, TO open decree for the purpose Of
enabling the petitioner to prove, not by afdavts bu
by competent proof, TO determine tho ultimate merits
OF tho case, It proper that should express any
opn on this preliminary proceeding upon the sub
jcct OF such an alleged improbabity Beside, the
Will was made at the same time In respect to both
kinds OF property ana by the tcstator, undue
influence could be proved It might be quito dicult
determine that the influence did not Affect the will
all It's points.
Some observations and experience have led me to
dcporc the growing irreverent disregard by hcrs al
law and next oil kun 0 the last wills and
testaments OF those who by honest industry and
prudence may have acquired moderate competence.
or an abundance, and who pursuant 10 law havc pre-
sumci to b. stow their pittance or their fortune,
cordng 10 their FREQ will, resulting In The dissipation
and unscemy legal contests until tho performance o
solemn duty has become occasion OF anxiety, lest
Its attempted performance should prove seriously do
trmcntal rather than beneficial 10 those who just