GOTTSBERGER vs. SMITH. passing upon his account, the Surrogate possessed authority to supervise all his acts within the limit of his special administration, determine upon their validity and effect, and the extent of his responsibility in consequence thereof. If the collector, for example, had, during the existence of his trust relations with the estate, renewed a lease in his own name, and, on being called to account, were to claim the benefit of the renewal, the Surrogate should not hesitate to pronounce upon the transaction, hold the collector responsible for the rents, and require him to transfer the lease to the executor or administrator. But where the title was acquired, or the facts upon which the claim of title is based, transpired, before the fiduciary relations of the claimant as collector, by virtue of his letters, commenced, is it competent for the Surrogate, on the accounting of the collector, to consider and pass upon the validity of that title? How is the matter brought within the jurisdiction of the court? Not, certainly, because the dispute is about the estate of the deceased; for if a third person, a stranger, had, previous to the collectorship, procured from the owners a new lease, I could not try his title on the accounting of the collector. This is conceded by the counsel for the administrators; but they urge that the fact that the new lessee happens to be the collector, brings the requisite parties before me; and, in the next place, they insist that the decision of the question of title is essential to a correct accounting. But the case is not strictly analogous to the accounting of an administrator. There, the administrator represents the estate at the time of the accounting; and if he claims title against the estate, the Surrogate might, perhaps, from the necessity of the case, pass upon the question. Here, the estate is represented by the administrators, and they may try the title at law: wherefore it is not indispensable that the controversy should be determined before me. It follows that, in the present instance, I have not jurisdiction, by virtue of any acts of the collector, during the period of his collectorship, nor by reason of any abso GOTTSBERGER vs. SMITH. lute necessity existing for the consideration of the question before adjusting and settling the collector's accounts. If Smith had received the rents of this property during his collectorship, as collector, of course he might be held to account for them in that capacity. But he denies that, and it is not proven. If he was in possession before his appointment, under claim of title in himself, as against the estate, the presumption is that he continued to collect the rents in his own right, and not under his letters. It is admitted that if there had been an ostensible outstanding estate in Smith, at the time of the testator's death, it might very properly be contended that the claim of the administrators should be tried before another tribunal. If so, then the fact that the same person is claimant and collector is not enough to give me jurisdiction. This makes the whole question to depend upon the circumstance that the adverse title was acquired subsequent to the testator's decease, and there is obviously no element in that naked fact which gives jurisdiction. I am inclined, at all times, to a rigorous exercise of the powers of the court in holding trustees to a strict accountability for all their acts during the period of their trust; but the court should proceed with great delicacy in exercising incidental jurisdiction, when there exists an undoubted remedy for the alleged evil elsewhere, especially when the rights of sureties on the official bond of the officer sought to be made liable, may be seriously affected. I must, in consonance with these views, decline trying the right of the collector to the leasehold estate in question, leaving the parties to their action in another court. CAMPBELL vs. LOGAN. CAMPBELL vs. Logan. In the matter of proving the last will and testament of CATHARINE MACABEE, deceased. The probate of a will of personalty, is conclusive as to the validity of the will in every case, except in a proceeding instituted for the purpose of revoking, or modifying the probate. The statute has made no express provision for revoking a probate where another and later will has been discovered: though the power to revoke seems to be implied in the section declaring the force of the probate as evidence, until reversed on appeal, revoked on allegations filed within the year, or "declared void by a competent tribunal.' The power to revoke probate has been exercised by the ecclesiastical courts,. whether the will was proved in common or in solemn form. The Surrogate may open a decree of probate for the purpose of taking proof of a later will. This power is incidental to his jurisdiction of the proof of wills, and is essential to the administration of justice. The Surrogate's Court proceeds in all matters relating to the probate of wills, and the administration of the estates of deceased persons, according to the course of the common and ecclesiastical law, as modified by statutory regulations. Where jurisdiction is given by statute, the mode of exercising it in cases not specially provided for, must be regulated by the court in the exercise of a sound discretion, according to circumstances. Although a will has been admitted to probate, a legatee under a later will may propound the latter for probate, and is not concluded by the probate of the previous will. If the last will revokes the former, the first decree will be recalled. If the two instruments are not entirely inconsistent with each other, the decree may be so modified as to declare that both instruments, taken together, constitute the last will and testament of the deceased. Whether it is a sufficient compliance with the statute regulating the manner of executing wills, for one witness to write the name of the other, or for a witness to attest by mark instead of subscribing his name, quære. Where attestation was made, by one witness signing his own name, and holding and guiding the hand of a second witness while the name of the latter was signed,-Held, that the execution was valid. The testatrix requested her will to be altered in the presence of the wit CAMPBELL VS. LOGAN. nesses; it was altered, read aloud, and executed,-Held, that there was sufficient evidence of testamentary declaration. A. R. DYETT, for Legatee. E. H. NICHOLS, J. THOMPSON, W. G. STERLING, for Executor. THE SURROGATE. The testatrix died on the 14th of May, 1851, leaving surviving her Charles Macabee, her husband, and Charles Logan and Ann Campbell, her brother and sister, and only next of kin. On the sixteenth of May, Charles Logan applied for the proof of a will dated the 8th of May, 1851, wherein he was named executor. All the parties were duly cited, and the will was admitted to probate, without contest, on the 19th of June last. On the 26th of June, James Campbell, the husband of the sister of the deceased, propounded for probate an instrument dated the day after the will of the 8th of May. The parties having appeared on citation, objection was made to any further proceeding, on the ground that the probate of the will of the 8th of May, was conclusive as to the validity of that will. This position is sound and unanswerable in every case except in a proceeding which has for its very object, directly or indirectly, to revoke or modify the probate. If the court possess the power to revoke, open, or alter its orders, it is self-evident that the order itself cannot be set up as a bar to the exercise of an authority which presupposes the existence of some decree or order on which to act. The real question, therefore, is whether after a will is admitted to proof, the Surrogate has control over his own decree of probate. The subject is one of moment, and deserving of much consideration. The statute has provided the means of enabling the next of kin of a testator, within a year after the probate, on filing allegations against the validity of the will or the competency of its proof, to compel the executors to prove the will anew; and, after hearing the proofs, if the Surrogate decide the will to be invalid, or not sufficiently proved, he CAMPBELL VS. LOGAN. may annul and revoke the probate thereof. But no provision has been made for revoking the probate, where another and later will is subsequently discovered. And yet such a case may often occur after proof of a previous will, and the parties in interest under the last will be deprived of their rights, without notice and without fault or negligence, unless a remedy exists beyond the express provisions of the statute. There is nothing in the law forbidding the exercise of such a power; but, on the contrary, there is a very fair implication in its favor in the very section which declares the probate to be conclusive evidenc e of the will until reversed on appeal, or revoked by the Surrogate on allegations filed within a year by the next o kin, "or the will be declared void by a competent tribunal." (2 R. S., 3d ed., p. 121, § 21.) This section was proposed by the Revisers as a rule of evidence declaratory of the exist ing law (3 R. S., 2d ed., p. 630), and was not designed to restrict the power of the Surrogate. Indeed, it distinctly recognizes the competency of some tribunal to declare the will void; and if that does not lie within the jurisdiction of the Surrogate, I do not know where the power resides. (Williams on Exrs., 450-457.) No other court possesses jurisdiction in respect to the proof of wills of personal estate; and if the Surrogate has no authority to open a decree for the purpose of correcting a mistake, or to let in the proof of a revocation, or a later will-if the moment a decree of probate is passed, the door is closed, and the act is irrevocable, notwithstanding the discovery of circumstances showing the probate to be erroneous, then it is evident that justice may be sacrificed to the forms of proceeding. This power has always been exercised in the English Ecclesiastical courts. Wentworth says, "If there be falsehood in the proof, were it communi forma, that is, without witnesses, or by examination of witnesses, (that is, in solemn form), yet it may in the spiritual court be undone, if disproof can be made, or proof of revocation of that will was once made, or of the making of a later." (Wentworth, Off. Ex., |