In order to institute- the proceeding it was necessary for the petitioner to prove presumptively “ by affidavit or otherwise to the satisfaction of the surrogate,” among other things, that “ the decedent left no will.” (Code Civ. Proc. § 2662.) Of course, that means no valid will. ‘‘The word ‘intestate’ signifies a person who died without leaving a valid will.” (Code Civ. Proc. § - 2514.) The verified petition stated the death of Mrs. Cameron “ without leaving any valid last will and testament to my knowledge,' information or belief.” The petitioner was the nephew of the decedent, and one of her nearest of kin, and resided in the same county with her. Apart from this statute, testacy is not .presumed, and, therefore, less evidence is necessary to prove intestacy presumptively. We think the petition sufficient to justify the surrogate in deciding that it gave him jurisdiction to inquire and determine what the fact is.
Upon the issue as to Mrs. Cameron’s intestacy, the test was whether she left a valid will. The question being open for determination, manifestly the presumption in favor of intestacy continued until overcome by .the evidence, since under our statutes the existence of a valid will cannot be presumed, but it must be shown to have been executed and published as prescribed by our statutes by a person having testamentary capacity.
*124Therefore, unless the evidence before the . surrogate was such as would' render it reasonably certain that upon an application for its probate it could be established, the surrogate might find that the decedent died intestate.
This situation was peculiar. The decedent was an inhabitant of the county of Warren in this State. She executed the alleged will and codicil 'there, died there, and left assets within this State. The person named as executor, instead of applying.for the probate of these instruments to the domestic forum where all' the evidence touching their validity was easily obtainable, took them to the distant forum of another State, where the opportunity to challenge their validity and defeat their probate was less favorable than in the domestic forum, and he procured probate there under the. laws of that State. The proceeding in that State seems to have been ’ ex ftcurte. The decree recites that “ due notice of the application for the proof of said will and codicil has been given ás by statute requiredbut what the statute requires was not shown, and .there are no recitals of appearances.' This proceeding instituted before the surrogate of Warren county in behalf of the next of kin was a direct challenge of the validity of the alleged will. It was not met by an application.for probate. Of course, the next ,o.f kin do not ask its probate, and they cannot resist it before it is attempted. If the order appealed from should be reversed, the administratrix must be displaced. The will still remains unprobated, and it may be that the person named as: executor in it will distribute all the assets according to its provisions. The fact that a foreign forum was sought and the domestic one avoided ;. that the proceeding there was ex parte ; that the original instruments had been so placed that they could not be produced here, and that photographic copies were produced in their stead,., and that no application to probate .the instruments here had been made or proposed ; that witnesses were called as to the execution of the codicil, but not of the will; might,, in the absence of explanation, suggest doubt to the surrogate. Such doubt, in .connection with the statutes which prescribe the kinds of evidence which the surrogate may receive, and consider upon the application to prove án existing written' domestic will would naturally be strengthened.
While- the record of the foreign court might be sufficient evidence *125of the existence and validity of the will under the laws of Illinois and within that jurisdiction, it could be no substitute for the evidence which our statutes require to be produced before the surrogate in support of the probate of a domestic will.
The evidence adduced by the appellants was relevant to the issue of the existence of a will; strictly speáking, it was error to strike it out. But the surrogate expressly found, upon the settlement of the case, that the evidence given in this proceeding did not satisfy him" of the genuineness of the alleged will and codicil or either of them, or of the validity of their execution, under £he laws of this State. The record contains the evidence which he struck out, and, as he passed upon it, we may do the same (Code Civ. Proc. § 2586); and if we sustain his finding of facts, his error in striking it out is not reversible error, since, whether in or out, the result would bé the same.
Full faith and credit must, of course, be given by this State to> the records and judicial proceedings of the State of Illinois, and that is done by conceding the will and codicil to be valid in that State. The laws of that State do not give or attempt to give them further force. If the will had been executed in that State we should be governed by its laws in determining the validity of its execution. (Code Civ. Proc. § 2611.)
Could the will be probated here if it could not be produced, its existence being known % The implication of the 1st subdivision of section 1861 and of section 2620 of the Code of Civil Procedure is that the surrogate cannot admit such a will to probate. ■ The courts, however, have held that walls executed in other countries, which might be admitted-to probate here if produced, may be proved before the surrogate upon evidence taken upon commission, the will being produced before the commissioner and the witnesses thereto, and such witnesses giving their testimony as to the original wall thus produced. Such a production is held to be a production before the court in the person of its commissioner. (Russell v. Hartt, 87 N. Y. 19; Matter of Delaplaine, 45 Hun, 225.) As the witnesses to these instruments reside in this State they must be examined here. A commission would not enable the surrogate or the commissioner or parties to confront them with the will itself.
The difficulty could, perhaps, be overcome in an action in the Supreme Court under section 1861. (Younger v. Duffie, 94 N. Y. *126535.) That court, by 'virtue of its general jurisdiction in equity,, could, no doubt, adapt its procedure to. meet the exigency. If so, no reason is suggested why such an action may not now be brought,» and, if successful, be followed by vacating the letters of administration. But we cannot say upon the evidence that the will could stand the test of a rigid inspection or that the Supreme Court would probate it.
The difficulty with the case is, that if the letters of administration be now vacated, the laws of this State may possibly be circumvented by the practical administration of the estate under a will which, if valid, ought to be established according to our laws, and if not valid, should not.be made effectual by.indirection; and we are-, not disposed to set such a precedent;
The decree of the surrogate is affirmed, but without costs.
All concurred.
Decree of the Surrogate’s Court affirmed, without costs.