The order and decree appealed from should be. affirmed, with costs. ■ •
It is provided by section 2481, subdivision 6, Code of Civil Procedure, that “A surrogate,, in court or out of Court, as the case requires, has power to open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly-discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record 'and of general jurisdiction exercises the same powers. tJp'on an appeal from' a determination of 'the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate ; and his,determination must be reviewed as if an original application was made to that term.” '•
A suggestion was made that a fraud had been committed upon the surrogate in procuring the probate of the will and codicil, but this was met and satisfactorily disposed of, and the' Surrogate’s Court very properly held in this proceeding that no- such fraud existed.. No relief was sought by reason of newly-discovered-evidence or clerical error. So that the relief asked for could only be granted for something covered by the words' in the statute “ or other sufficient cause.” ...
Emily L. Gaffney, the testatrix, Was a resident of Pochester,N. Y., but was temporarily in England when the will and codicil were executed. The will was dated' London, July 2, 1897, was entirely in the handwriting • of the testatrix, including the attestation clause and her own signature, and was witnessed by a physician and a butler. The codicil was dated at London, July 27,1903, was entirely in the handwriting of the testatrix, including the'attestation clause, was not signed by her unless her name in-the attestation clause could be regarded as her signature, and it was -witnessed -by a widow and a spinster. ' . "v.
The will and codicil disposed of all thé property of the testatrix, composed of real and personal. The petitioner here was a legatee, tinder the will, but was entirely cut off by the codicil from all- interest in the estate. The testatrix died at London two days after the. *585codicil was executed, July 29, 1903. She left real and persona] property, but the amount and value thereof does not appear from the record.
' Proceedings for the probate of the will and codicil were commenced October 26, 1903. The petitioner herein was not an heir .or next of kin of the testatrix, and was not, therefore, cited in the proceeding. The statute did not require it. (Code Civ. Proc. § 2615, subd. 3.) She did not appear in the proceeding. The proofs were taken December 8, 1903, and the decree was made December 12, 1903, admitting the will and codicil to, probate. This proceeding was not commenced until January, 1906, after more than two years had expired. The petitioner claims not to have discovered the facts upon which her application is made until recently.
Besides the allegation of fraud, hereinbefore referred to, the application is based upon the allegations, in brief,
1. That the codicil was not signed by the testatrix, as appears by the paper itself.
2. That there was no sufficient proof given before the Surrogate’s Court to excuse the production of the witnesses to the codicil, and the taking of their evidence, under sections 2618 and 2619'-of the Code of Civil'Procedure.
3. That the evidence of the witness who was produced and sworn before the Surrogate’s Court was insufficient to prove the execution of the codicil.
There was no attempt to prove the execution of the will, except by the proof of the codicil. Proof of the execution of the codicil would be sufficient to authorize the will as well as the codicil to be admitted to probate. The witnesses to the codicil were not produced before the surrogate, or examined as to the execution of the same. It was not suggested that there was any .other reason for their absence except their absence from this State, and the only evidence upon that subject was that their residence, as stated on the codicil, was England; and a sister of the testatrix, who was produced, as a witness before the Surrogate’s Court, testified that one of them resided in England, both were English ladies, and were, at the time of the execution of the codicil, living temporarily at the same house where testatrix was, and that she, the sister, never had any reason to suppose that they would visit this country. This sister *586testified' as to the execution of the codicil; that she was present-that, testatrix drew the same; that, she, at the. request of testatrix,, called the witnesses- in; that after they came testatrix drew the attestation clause and told the witnesses she would like to have them he witnesses to the codicil which she had just drawnthat she handed, the codicil-to the witnesses, and -they at Once, in her presence and-' in the, presence of each other, signed as such witnesses. Then'the papers were sealed and given to witness, the sister, and she kept them till after the testatrix died. Upon this evidence the probate was granted.
• If' the petitioner, here had in timé become a party to the proceeding and taken an appeal as permitted by the Code of Civil Procedure, the decree of the surrogate would very likely have been reversed and a rehearing granted for want of adequate, proof of the execution of the codicil. If the case were a proper one for an action under section 2653a, and the, action had been commenced in time, the petitioner might have secured any rights she was entitled to therein. Both these remedies were, however, barred by the limitations of the statute when this proceeding w.as commenced. There was rio limitation to the remedy, if- any existed, under this statute, in question. ' (Matter of Henderson, 157 N. Y. 423, and the cases therein referred to,)-
But the difficulty is that the statute does not seem to afford the petitioner any relief under the facts of this case. Whether, the codicil was properly-signed by the testatrix,, under the circumstances,, was a disputed question of law aiid fact. Whether the proof of the absence of the witnesses from the State was sufficient to excuse their production as witnesses was a question of fact. Whether the evidence of the sister ,was sufficient to establish, a proper execution of the codicil was a question of fact. All these questions were, for the Surrogate’s Court to decide. .And while its decision as to any or all of them may have been so .erroneous that the court on appeal would have reversed the decree arid granted a new trial-, still for such error appeal, was the proper remedy. This proceeding is not the proper remedy,, and no relief can be granted herein.
The proceeding cannot be used as a means of reviewing the decree of the Surrogate’s Court for. errors of judgment as to qtiesL. tians of law or fact.. ,Such errors can .be corrected only by appeal.
We have examined the cases cited by counsel, bearing upon the *587subject. We do not think it necessary to analyze or discuss them here. Our conclusion is that the decision of the Surrogate’s Court denying the application should not be disturbed by us.
All concurred, except Kruse, J., who dissented in an opinion.