I concur in the affirmance of this order, as I do not think that the surrogate had any power to set aside the decree for the purpose of allowing one not a party to the proceeding to come in and introduce evidence as to the validity of the codici1. The appellant was never a party to the proceeding, and it is difficult for me to see upon what principle a person not a party could move to set aside a decree regularly made, for the purpose of allowing him to be made a party to retry the issues settled by the decree. The power of the surrogate, under section 2481 of the Code of Civil Procedure, is, as I view it, only to be exercised on behalf of a person who is a party to the proceeding, and not in favor of one not a party. As this appellant was not a party, I do not think he was bound by the decree. No notice was served under section 2617 of the Code. Section 2626 does not apply. That section provides that “a decree admitting to probate a will of personal property, made as prescribed in this «article, is conclusive as an adjudication upon all the questions determined by the surrogate pursuant to this article, until it is reversed upon appeal or revoked by the surrogate.” But it seems to me clear that this provision only applied to the decree so far as it admitted the will to probate, and not to that portion of the decree which refused to admit the codicil to probate. There is no provision which makes a decree refusing to admit a will to probate binding upon any one not0 a party to the proceeding. It ■would appear, therefore, that as the appellant, was not a party to the proceeding, and was not bound by the decree, he could again present the codicil, under section 2614 of the Code, for probate, and have the question of its proper execution and validity determined.
Nor do I think that, even if this appellant had knowledge of the existence of this codicil, it was bound to appear and become a party to the proceeding, or to be bound by the decree. There is certainly no provision of the statute that I know of that imposes such a burden. If any of the parties to the proceeding had wished to bind this appellant, it could have been made a party, under section 2617 of the Code; but that section expressly provides that it does not affect the right or interest of such person, unless he becomes a party.
For the reason that the surrogate had no authority to set aside this decree on the application of a person not a party to the proceeding when the decree was made, I concur in the affirmance of the order.
HATCH, J., concurs.