This is an appeal from a judgment in favor of the defendant Stover. The action was brought for the рartition of real property which formerly belonged to Patrick Trenor, deceased. Trеnor died in February, 1888, leaving a last will and testament, by which he devised the real property in question to Annie E. Stover. When the will was presented for probate to the surrogate of the county of Nеw York, it was contested; and, at the close of the contest, the will was rejected, and probate thereof was refused. Thereupon this action was commenced for the partitiоn of the property. The plaintiff and some of.the defendants are heirs at law of Patrick Trеnor, deceased. The complaint is framed for the purpose of testing the validity of the will оf Trenor, and contains an allegation that it is void and ineffectual. The defendant Annie E. Stover answered, and set up the will as a defense to the action, alleged its validity, and claimed the property as devisee under it. When the cause came on for trial, a question arose respecting the effect of the surrogate’s decree rejecting the will, and a stipulation was made that the jury which had been impaneled should be discharged, and, if the trial judge decided that the surrogate’s decree was not conclusive, then the issue touching the validity of the will should be tried bеfore a jury at a subsequent term, and, if the judge decided that the decree was conclusive against the will, the plaintiff should prevail in the action. The decree of the surrogate and cеrtain other papers -connected therewith were then received in evidence, аnd the decision respecting their effect was reserved. Subsequently the trial judge -decided that the decree of the surrogate was not conclusive against the validity of the will, and directed thе issues respecting the same to be tried by a jury. Pursuant to that direction the cause was tried before a jury, and a verdict was rendered in favor of the defendant Stover, establishing the validity of the will. Upon this last trial the -counsel for the plaintiff offered in evidence the decree
A decree of a surrogate admitting to prоbate a will of real property establishes presumptively all the matters determined by the surrоgate (Code Civ. Proc. § 2627); while a decree of a surrogate admitting to probate a will of рersonal property made is conclusive as an adjudication upon all questions legally determined by the surrogate (Id. § 2626). Such are the effects of surrogates’ decrees admitting wills to probate; but we are required now to ascertain and determine the effect of a decree rejecting a will of real property. The first impression upon the mind on the presentation of the question is that such a decree can have no legal effect upon the will as аn instrument of title to land. That conclusion is reached naturally from the nature and charactеr of the will. It becomes operative upon the death of the testator, and the title of thе devisee to the land devised becomes vested at that time. A failure to propound the will for probate can have no effect upon such title, because it is derived from the will. Its prоbate would be of no avail except to supply presumptive evidence of its validity, and that may be repelled at any time by contrary proof. 2 Rev. St. p. 58, § 15. Wills of real property may be used to establish titles which they create in the same manner as deeds. In fact, they have sometimes been called “statutory conveyances.” They may be introduced in evidence, upon proper proof, in any action to recover the property devised or tо defend the possession thereof. Norris v. Norris,
Without further pursuit of the subject, our conclusion is that the judgment should be affirmed, with costs. All concur.