Opinion
November 27, 1908.
Benjamin F. Kraft [ Lewis M. Scheuer with him on the brief], for the appellant.
Nicholas Dietz, for the respondent.
The decree for probate should have stated whether probate was contested. (Code Civ. Proc. § 2623.) But the decree is not in this record, and all that appears therein is that there was probate. The case then is not complicated by the fact that the petitioner appeared by special guardian at the probate, inasmuch as mere probate is conclusive only as to formal validity. (Jessup Surr. [2d ed.] 187; Redf. Surr. [5th ed.] 855, 856.) As I read the judgment in Matter of Killan ( 172 N.Y. 547), the learned surrogate is right in his disposition of this petition. As he has expressly reserved all questions as to the construction, interpretation, validity and effect of the will, in so far as the same may arise or be necessary to pass on in the disposition of these proceedings, he can upon this proceeding determine first whether the petitioner has any standing; and if so, he can order the accounting. But the citation should be so amended as to bring in the parties who were cited to the original account or appeared upon it. (See Matter of Killan, supra.)
The proceedings should be thus modified and as thus modified the order should be affirmed, but without costs.
WOODWARD, GAYNOR, RICH and MILLER, JJ., concurred.
Order of the Surrogate's Court of Kings county modified in accordance with opinion and as so modified affirmed, without costs.