[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 192
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 193 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 195
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 196 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 198 The judgment of the surrogate, in admitting the will in this case, (which relates only to personal property,) to probate, is the decision of a court of competent and exclusive jurisdiction, which cannot be impeached collaterally. (2 R.S. 61, § 29; 7Paige, 397; 3 Barb. Ch. R. 481.)
The twenty-ninth section of the statute, (2 R.S. 61,) declaring the probate of wills of personal property conclusive, does not necessarily conflict with the eighteenth section of the act of 1837, which makes the fifteenth section of the revised statutes in relation to wills of real estate, applicable to wills of personal property. The section last mentioned provides "that wills proved according "to the previous provisions of the act, shall have a certificate "indorsed thereon, signed by the surrogate and attested by his "seal of office, and may be read in evidence without any further "proof thereof." *Page 199
"The record of such will, made as aforesaid, and the exemplification of such record by the surrogate in whose custody the "same may be, shall be received in evidence, and shall be as "effectual, in all cases, as the original will would be, if produced "and proved, and may in like manner be repelled by contrary "proof." The object of the provision was to make the certificate of the surrogate, and the record of the will or an exemplification, prima facie evidence. The legislature have accordingly declared that such shall be their effect; and have placed them upon the same footing as the records and exemplifications of deeds. (3 John. Cas. 236; Revisers' Notesto § 15, 3 R.S. 629.)
But the probate of a will, by which is meant the evidence, jurisdictional and otherwise presented to the court, together with the judicial determination of the surrogate upon that evidence, is, as to personal property, conclusive notwithstanding.
It is in the nature of a proceeding in rem; to which all persons having an interest in the subject of litigation may make themselves parties, and are consequently bound by the decree. (4Paige, 623.)
Second; if the will should be avoided, on account of its defective execution, the trust fund established by Mrs. Van Alstyne for her son, would fall into the mass of her property to be distributed in the due course of administration, under the supervision of the surrogate. Here no administrator has been appointed, and the complainants, as judgment creditors, have no right to enforce a distribution, where the estate is not represented. (3 Barb. Ch. R. 479.)
Third; in any view of the case, whether the trust is sustained or avoided, William P. Van Alstyne is a necessary party, either as cestui que trust or as one entitled to a distributive share of his mother's estate. This objection is distinctly made in the answer, and the defendants may consequently avail themselves of it, with the same effect as though they had demurred to the bill for that cause.
For the reasons suggested, without adverting to other questions *Page 200 made upon the argument, the decree of the supreme court should be affirmed.
RUGGLES, Ch. J., and GRIDLEY, WELLES, JEWETT and JOHNSON, Js., concurred in the foregoing opinion.