I dissent and vote to affirm the decree on the ground that the statute obligated the surrogate to inquire before permitting probate even though no objection was filed to the second codicil; that the surrogate’s conclusion refusing probate to such codicil is supported by the overwhelming preponderance of the credible testimony; and that a second trial should not now be required when the parties appellants in interest, who actually had notice and appeared, made no objection to the *102inquiry during the lengthy proceedings and also failed to make any seasonable demand for a jury trial.
Decree, so far as appealed from, denying probate of the instrument dated October 1, 1934, reversed and proceeding remitted to the surrogate of the county of New York for further action in accordance with the opinion.