In re the Probate of the Alleged Last Will & Testament of Essig , 63 Misc. 612 ( 1909 )

Ketcham, S.

Motion that probate be refused is denied.

The findings and decree in the proceeding brought for the probate of a paper other than the one now propounded do not constitute a former adjudication.

True, the two papers were made within a few minutes of each other, and it is a stretch of one’s credulity to believe that-the earlier one was safe from the circumstances which destroyed the second. But the determination as to the second was not a-determination as to the other. It could not be, and the findings, so far as they contain a conclusion that the paper not offered for probate in the former proceeding was void, were unnecessary to the decision.

“ A judgment is conclusive upon the parties thereto only m respect to the grounds covered by it, and the law and facts necessary to uphold it; and, although a decree, in express terms, purports to affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference thereto.” Woodgate v. Fleet, 44 N. Y. 1.

Decreed accordingly.