113 N.Y.S. 97 | N.Y. App. Div. | 1908
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 uetition. As he has expressly reserved all
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.