(Surrogate's Court, New York County. January, 1909.)

1. WILLS (§ 346*)-PROBAte-JudgmentT-CONCLUSIVENESS.

A judgment of the probate court of Missouri admitting a will to probate is not a conclusive adjudication until expiration of the period allowed for an action to determine the validity of the will, and the commencement of such an action immediately effects a vacation of the judgment of the probate court and leaves the question of the validity of the will open.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 803; Dec. Dig. § 346.*]

2. JUDGMENT (§ 822*)-FOREIGN JUDGMENTS-CONCLUSIVENESS-PERSONS CON

CLUDED.

A judgment of the probate court of another state admitting the alleged last will of decedent to probate does not estop persons not parties to the proceedings in which the judgment was obtained from ignoring such proceedings and proving that the instrument offered by them for probate is the last will of decedent.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1498; Dec. Dig. § 822.*]

3. WILLS (§ 226*)-PROBATE-PENDENCY OF PROCEEDINGS IN ANOTHER STATE. Where all the parties to a proceeding to probate a will are not parties to an action in another state attacking the validity of a will there probated as that of decedent, and the issues raised in that action do not involve all the issues presented in such probate proceeding, and the judgment which might be rendered will not necessarily affect the relief proponent seeks, the pendency of such action is not available to bar the prosecution of the probate proceedings.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 548; Dec. Dig. § 226.*]

Application for the probate of the will of Emma C. Sands, deceased. Will admitted to probate.

John B. Pine, for petitioner.

Charles W. Ridgway, for contestant.
Warren S. Bartlett, special guardian.

BECKETT, S. It is admitted that most of the property of decedent, which consisted entirely of personalty, was situated in this state at the time of her death, and the evidence establishes that at that time she was a resident of this county and that the papers propounded as her will and codicil thereto were in all respects duly executed in conformity with the law of this state and are entitled to be admitted to probate as her last will and testament, unless the proceedings which were had in the courts of the state of Missouri prevent that result. The judgment of the probate court of Independence county, in the state of Missouri, admitting to probate an alleged subsequently executed will of the decedent, which the contestant sought to introduce in evidence to defeat the probate of the papers propounded in this proceeding, was made in what is known as a "probate proceeding in common form," and from the nature of that proceeding no notice

thereof was required to be given to the heirs at law or next of kin of the decedent or to any person in any way interested in sustaining the validity of the papers here offered for probate; and it does not appear that notice of the proceeding was given to or actually had by any of them, or by any party to this proceeding, although it might not unreasonably be surmised that that proceeding was not unknown to such of them as were interested in establishing the will affected by it and in preventing the probate of the papers here propounded.

After the termination of the proceeding in the Independence county probate court, an action was brought in the circuit court of Jackson county, in the state of Missouri, by the proponent in this proceeding and certain other of the parties thereto, within the time allowed by the statutes of that state for the purpose, to test the validity of the will so admitted to probate in that state. That action or proceeding is still pending; but all of the parties to this proceeding are not parties thereto. No attempt was made by the contestant in the present proceeding to prove the last-mentioned will in accordance with the requirements of the provisions of our Code relating to the probate of wills by Surrogates' Courts, he entirely resting his case upon the contention that the proceedings in the state of Missouri were a complete bar and answer to the present proceeding. Under the laws of the state of Missouri the judgment or action of the Missouri probate court was not capable of becoming a final or conclusive adjudication until the expiration of the period allowed by those laws for the commencement of an action or proceeding in the circuit court to determine the validity of the will, and then only in the event that no such action or proceeding had been commenced within the prescribed period. Such action or proceeding was brought, and, as previously stated, is now pending. The judgment or action of the probate court, which is an inferior court of limited jurisdiction, was entirely interlocutory and inconclusive in character, and of no binding force whatever at the time of the commencement of the action in the circuit court, and the commencement of that action immediately effected a vacation of the action of the probate court and left the question of the validity of the will entirely open for trial and decision by the circuit court, precisely and as completely as if the action in the probate court had never been taken. Hogan v. Hinchey, 195 Mo. 532, 94 S. W. 522; Cast v. Lust, 142 Mo. 630, 637, 44 S. W. 724, 64 Am. St. Rep. 576. The judgment or action of the Missouri probate court not being a conclusive adjudication in the state of Missouri, obviously it cannot operate as such an adjudication in this state. But, whatever may be the force of that judgment in the state of Missouri, it could not and does not preclude or estop the proponent and the other parties to this proceeding, who were not parties to the action or proceedings in which it was obtained, from entirely ignoring such action or proceedings and proving, despite them, that the instruments under which they claim were the last will and testament of the decedent. Matter of Law, 56 App. Div. 458, 67 N. Y. Supp. 857; Matter of Gaines, 84 Hun, 520, 523, 32 N. Y. Supp. 398, affirmed 154 N. Y. 747, 49 N. E. 1097; Garvey v. United States. Fidelity & Guaranty Co., 77 App. Div. 395, 79 N. Y. Supp. 337; Over

by v. Gordon, 177 U. S. 214, 227, 20 Sup. Ct. 603, 44 L. Ed. 741; Tilt v. Kelsey, 207 U. S. 43, 51, 59, 28 Sup. Ct. 1, 52 L. Ed. 95; Brigham v. Fayerweather, 140 Mass. 415, 416, 5 N. E. 265; Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 51.

It follows that the record of the proceedings in the probate court of Independence county cannot be admitted in evidence in this proceeding. All the parties to the present proceeding are not parties to the action in the circuit court of Jackson county, and the issues raised in that action are not entirely the same as, and do not cover or necessarily involve all, the issues presented in this proceeding, and the judgment which might be rendered in the circuit court need not necessarily, or at all, affect the relief the proponent seeks here. Such being the case, the pendency of the proceeding in the circuit court is unavailable as a bar to the prosecution or maintenance of this proceeding. Stowell v. Chamberlain, 60 N. Y. 272, 276; Mandeville v. Avery, 124 N. Y. 376, 387, 26 N. E. 951, 21 Am. St. Rep. 678; Clark v. Vilas Nat. Bank, 22 App. Div. 607, 48 N. Y. Supp. 192.

Having concluded that the proceeding in the state of Missouri presents no obstacle to the probation of the papers propounded, I shall, as previously intimated, admit them to probate as constituting the last will and testament of the decedent.

Decreed accordingly.

(62 Misc. Rep. 166.)

In re SCHEETZ'S ESTATE.

(Surrogate's Court, Cattaraugus County. January, 1909.)

1. EXECUTORS AND ADMINISTRATORS (§ 250*) — ALLOWANCE AND PAYMENT OF CLAIMS-PRESENTATION AND ALLOWANCE.

Though the Surrogate's Court has no jurisdiction to adjudicate the merits of claims presented against a decedent's estate, it has authority to determine whether they have been properly presented, allowed, or rejected.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 893; Dec. Dig. § 250.*]

2. EXECUTORS AND ADMINISTRATORS (§ 437*) - DISPUTED CLAIMS AGAINST ESTATE-TIME TO SUE.

Code Civ. Proc. § 1822, provides that, where a claim against a decedent's estate is disputed or rejected, claimant must sue thereon within six months, unless a written consent shall be filed with the surrogate that the claim may be heard on settlement of the accounts of the personal representative. Section 2718 provides that the personal representative may agree with the claimant to refer the claim to one or more disinterested persons, to be approved by the surrogate. An executor notified claimants that he doubted the validity of their claim, and offered to refer the matter pursuant to section 2718, but did not positively reject the claim. The attorneys for the respective parties agreed to refer the claim, but no referee was agreed upon; but the conduct of the parties and their attorneys indicated that none of them understood that the executor had taken any final action as to the claim. Held, that there was no such absolute rejection of the claim as to bring it under the operation of section 1822, so as to be barred after six months.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 1758; Dec. Dig. § 437.*]

Proceedings for the judicial settlement of the account of the executor of the will of Miranda Scheetz, deceased. Certain claimants appeared and asked to have the status of their demands determined; the executor contending that they were barred by the short statute of limitations (Code Civ. Proc. § 1822). Finding for claimants.

W. W. Waring, for executor.

George E. Spring, for creditors.

DAVIE, S. The only controversy upon this accounting relates to the status of certain claims presented against the estate.

The will of decedent was admitted to probate February 26, 1906, and letters testamentary were issued upon the same day. Directly thereafter the executor began publication of notice to creditors. In September of the same year three claims, properly verified, aggregating $650, based upon promissory notes of the decedent, were duly presented to the executor, who thereupon caused a notice in writing to be served upon the claimants of which the following is a copy:

"Estate of Miranda Scheetz, Deceased.

"Please take notice that I doubt the justice or validity of your claim against the estate of Miranda Scheetz, deceased, both as to the execution and delivery of the alleged note and the lack of good and valuable consideration therefor, and hereby offer to enter into an agreement in writing with you to refer the matter in controversy to one or more disinterested persons to be approved by the surrogate of the county of Cattaraugus, N. Y., pursuant to the provisions of section 2718, Code of Civil Procedure.

"Dated Sept. 7th, 1906.

"Yours, etc.,

Orren F. Farrington,

"Executor of the Last Will, etc., of Miranda Scheetz, Deceased. "To [naming claimant]."

These notices were served upon the 18th of September, 1906. Shortly after service of the notices the attorneys for the respective parties made an oral agreement to refer the claims under the statute. No referee, however, was agreed upon; the attorney for the executor asserting that he desired to confer with his counsel upon that subject. Some discussion then ensued as to which claim should be tried first. From time to time thereafter the subject of selecting a referee was considered between the attorneys; the situation relating thereto being more fully set forth in the portion of the evidence of the attorney then representing the executor, hereinafter quoted. On July 29, 1907, a legatee filed a petition for citation to the executor to show cause why he should not procure judicial settlement of the estate and pay petitioner's bequest. On the return day of the citation the executor appeared and filed the affidavit of his attorney, verified August 15, 1907, which, among other things, stated:

"Originally, Messrs. Curtis & Curtis of the village of Franklinville, aforesaid, appeared for each of said claimants; but George E. Spring of said village has been substituted for the claimant James Squires, and efforts have been made from time to time to agree upon a referee or referees to hear and decide upon the claims, but, so far, none has been agreed upon and said claims are now pending. That, from the peculiar circumstances surrounding said claims, deponent believes and has advised said executor and

others interested in the estate, including the petitioner in this proceeding, that the interests of said estate will be benefited, instead of jeopardized, by delay in the trials. Deponent further says that he has written Delia Harrison, the petitioner in this proceeding, several times, advising her of said claims, the action of the executor thereon, and generally the attitude and plans of deponent and said executor, and, in addition, has frequently given such information to one James Adams, a messenger of petitioner, and, until the service of the notice to show cause issued herein upon her petition and served upon said executor, had no knowledge or information that petitioner did not fully acquiesce in the management of said claims. That steps will be immediately taken on behalf of said executor to bring said claims to hearing and determination."

The proceedings on the citation to show cause were adjourned from time to time; and on the 19th day of November, 1908, the executor filed his petition for a judicial settlement of his accounts and citation. was issued, and thereupon the two proceedings became merged. On the return day of the citation for settlement the executor appeared by W. W. Waring, and the claimants appeared by the said Spring and asked to have the status of these demands determined; the executor contending that they were barred by the short statute of limitations. While the Surrogate's Court possesses no jurisdiction to adjudicate upon the merits of these claims, it has authority to determine whether they have been properly presented, allowed, or rejected. Potts v. Baldwin, 67 App. Div. 434, 74 N. Y. Supp. 655; Matter of Miles, 33 Misc. Rep. 147, 68 N. Y. Supp. 368, affirmed 170 N. Y. 75, 62 N. E. 1084; Matter of Von der Leith, 25 Misc. Rep. 255, 55 N. Y. Supp. 428. When a claim is properly presented to the representative of an estate, one of two conditions arises:

First, the representative possesses, or assumes to possess, sufficient information regarding the merits of the claim to justify him in allowing or absolutely rejecting the same. In case of rejection, if the claimant is dissatisfied with the action of the representative, his mode of procedure is defined by the provisions of section 1822 of the Code of Civil Procedure. This section provides:

"Where an executor or administrator disputes or rejects a claim against the estate of a decedent, exhibited to him, either before or after the commencement of the publication of a notice to creditors requiring the presentation of claims, as prescribed by law, unless a written consent shall be filed by the respective parties with the surrogate that said claims may be heard and determined by him upon judicial settlement of the accounts of said executor or administrator as provided by section 2743, the claimant must commence an action for the recovery thereof against the execu tor or administrator, within six months after the dispute or rejection, * * in default whereof he, and all the persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of decedent's property."

Or, second, the representative, while entertaining doubt regarding the validity of the claim, does not possess sufficient knowledge to justify him in absolutely allowing or rejecting the same. In such a case section 2718 of the Code defines the method of procedure. This section provides:

"If the executor or administrator doubts the justice of any such claim,