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.” Id. § 2514. The verified petition stated the death of Mrs. Cameron "without leaving any valid last will and testament, to my knowledge, information, or be*189lief.” 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 wheth- • er 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. Therefore, 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;
The 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 parte. The decree recites that “due notice of the application for the proof of said will and codicil has been given as by statute required,” but what the statute requires was no.t 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 pro-hate. Of course, the next of kin do not ask its probate, and they cannot resist it before it is attempted. If the order appealed from should be reversed, the adpiinistratrix 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; 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 an existing written domestic will, would naturally be strengthened. While the record of the foreign ■court might be sufficient evidence of 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 *190produced 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 speaking, 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 the 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 be 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 to be valid in that state. The laws of that state do not give or attempt to give it- 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 first subdivision of section 1861, and of section 2620, Code Civ. Proc., is that the surrogate cannot admit such a will to probate. The courts, however, have held that wills 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 will 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; In re 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. 535. 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 concur.