In re Patterson's Will , 23 Abb. N. Cas. 425 ( 1889 )

Ransom, S.

Whether the petitioner for the probate of the paper of April 19, 1888, is precluded by his own acts from taking any benefits thereunder need not now be determined. Whether the supreme court has jurisdiction of the action now pending therein, brought to have the will of April 18, 1888, declared the “true, lawful, and only will and testament” of decedent, it is not necessary for me to decide. The suggestion I make for the consideration of' counsel, that the surrogate’s court has exclusive jurisdiction to grant or deny probate of wills, need not be regarded by me at this time. I have not been furnished with the complaint in the action in the supreme court, but no doubt the cause of action in this suit is substantially set forth in the affidavit upon which the order to show cause herein was granted. It would seem to be the object and purpose of that action to have the paper of April 19,1888, declared to be invalid as a will, and the paper of April 18, 1888, which has already been admitted to probate as the last will and testament of the decedent, declared to be his “true, lawful, and only will and testament.” The paper of April 19, 1888, is in form a valid will. Proceedings have been duly commenced to procure its admission to probate which are now sought to be stayed by the executors (contestants) of the will of April 18,1888, pending the determination of the action in the supreme court. Whether, in the exercise of ■sound discretion, I should grant the stay, is the only question to be decided at this time. If the answer to that question depended upon the facts disclosed .as to the conduct of the petitioner for the probate of the paper of April 19, 1888, I should not hesitate to grant it; but the rights of others interested in ■this estate must be regarded. The paper now offered for probate having been filed with the surrogate, and proceedings commenced therefor, neither discontinuance thereof nor a stay can be granted at the instance of any one of the parties in interest. It is the duty of the surrogate to proceed in the matter independently. Section 2622, Code Civil Proc., provides that he shall “inquire particularly into all the facts and circumstances, and must be satisfied with the genuineness of the will and the validity of its execution;” and, if thus satisfied, it is his duty to admit it to probate. The rights of persons interested thereunder are usually for subsequent consideration. I have therefore -determined that this motion must be denied.