the collection and payment of debts, and such other acts as he is expressly allowed to perform, by an order of the surrogate, made upon notice to the petitioner. $2651. Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties. The testimony taken upon the application for probate of a witness who is dead or without the State, or who, since his testimony was taken, has become a lunatic, or otherwise incompetent, must be received in evidence. § 2652. If the surrogate decides that the will is not sufficiently proved to be the last will of the testator, or is, for any reason, invalid, he must make a decree revoking the probate thereof; otherwise he must make a decree confirming the probate. $2653. Where the decree revokes the probate of a will, as prescribed in this article, the surrogate must cause notice of the revocation to be immediately published, for three successive weeks, in a newspaper published in his county. [Added 189 2 22 N. Y. State Rep 77 82 Hun, 4:9 87 Hun, 343. 89 Hun, 183 165. § 2653a. Determining validity of a will. am'd 1896, 1897, by chapter 101, to take effect Sept. 1, 1897. Any person interested as devisee, legatee or otherwise, in a will or codicil admitted to probate in this state, as provided 90 Id. 157. by the code of civil procedure, or any person interested as 91 Id. 13, heir-at-law, next of kin or otherwise, in any estate, any portion of which is disposed of, or affected, or any portion of 34,497. which is attempted to be disposed of or affected, by a will or 15 Misc. 654. codicil admitted to probate in this state, as provided by the 150 N.Y 163. code of civil procedure, may cause the validity of the probate thereof to be determined in an action in the supreme court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested per sons, including the executor or administrator must be parties to the action. Upon the completion of service of all parties, the plaintiff shall forthwith file the summons and complaint in the office of the clerk of the court in which said action is begun and the clerk thereof shall forthwith certify to the clerk of the surrogate's court in which the will has been admitted to probate, the fact that an action to determine the validity of the probate of such will has been commenced, and on receipt of such certificate by the surrogate's court the surrogate shall forthwith transmit to the court in which such action has been begun a copy of the will, testimony and all papers relating thereto, and a copy of the decree of probate attaching the same together, and certifying the same under the seal of the court. The issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will and codicil of the testator, or either. It shall be tried by a jury and the verdict thereon shall be conclusive as to real or personal property, unless a new trial be granted or the judgment thereon be reversed or vacated. On the trial of such issue, the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity of such will or codicil. A certified copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial. The party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence and rebutting testimony may be offered as in other cases. If all the defendants make default in pleading, or if the answers served in said action raise no issues, then the plaintiff may enter jungment as provided in article two of chapter eleven of the code of civil procedure in the case of similar defaults in other act ons of the judgment to be entered in an action brought under this section is that the writing produced is the last will and codicil, or either, of the testator, sald judgment shall also provide that all parties to said action, and all persons claiming under them subsequently to the commencement of the said action, be enjoined from bringing or maintaining avy action or proceeding, or from interposing or maintaining a defense in any action or proceeding based upon a claim that such writing is not the last will or codicil, or either, of the testator. Any judgment heretofore entered under this section, determining that the writing produced is the last will and codicil, or either, of the testator, shall, upon application of any party to said action, or any person claiming through or under them, and upon notice to such persons as the court at special term shall direct, be amended by such court, so as to enjoin all parties to said action, and all persons claiming under the parties to said action subsequently to the commencement thereof, from bringing or maintaining any action or proceeding impeaching the validity of the probate of the said will and codicil, or either of them, or based upon a claim that such writing is not the last will and codicil, or either, of the testator, and from setting up or maintaining such impeachment or claim by way of answer in any action or procee ling. When final judgment sh 11 have been entered in such action a copy thereof shall be certified and transmitted by the clerk of the surrogate's court in which such will was admit'od to probate. The action brought as herein provi led shall be commenc within two years after the will or codicil has been admitted to probate, but persons within age of minority, of unsound mind, imprisoned, or absent from the state, may bring such action two years after such disability has been removed. § 2653a. Determining validity of a will. Added 1892 29 App. Div. am'd 1896, 1897, by chapter 701, to take effect May 22, 1897.- 370. Any person interested as devisee, legatee or otherwise, in a will or codicil admitted to probate in this s'ate, as provided by the code of civil procedure, or any person interested as heir-at-law, next of kin, or otherwise in any estate, any portion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this state, as provided by the code of civil procedure, within two years prior to the passage of this act, or any heir-at law or next of kin of the testat r making such will, may cause the validity or invalidity of the probate thereof to be determined in an action in the supreme court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator must be parties to the action. Upon the completion of service of all parties the plaintiff shall forth with file the summons and complaint in the office of the clerk of the court in which said action is begun and the clerk thereof shall forthwith certify to the clerk of the surrogate's conrt in which the will has been admitted to probate, the fact that an action to determine the validity of the probate of such will has been commenced, and on receipt of such certificate by the surrogate's court, the surrogate shall forth with transmit to the court in which such action has been begun a copy of the will, testimony and all papers relating thereto, and a copy of the decree of probate, attaching the same together, and certifying the same under the seal of the court. The issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will and codicil of the testator, or either, It shall be tried by a jury and a verdict thereon shall be conclusive as to the real or personal property, unless a new trial be granted or the judgment thereon be reversed or vacated. On the trial of such issue the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity of such will or codicil. A certified copy of the testimony of such of the witnesses examined upon the probate, as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial. The party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence and rebutting testimony shall be offered as in other cases. If all the defendants make default in pleading, or if the answers served in said action raise no issues, then the plaintiff may enter judgment as provided in article two of chapter eleven of the code of civil procedure in the case of similar defaults in other actions. If the judgment to be entered in an action brought under this section is that the writing produced is the last will and codicil, or either, of the testator, said judg ment shall also provide that all parties to said action, and all persons claiming under them subsequently to the commence ment of the said action, be enjoined from bringing or maintaining any action or proceeding, or from interposing or maintaining a defense in any action or proceeding based upon & claim that such writing is not the 1 st will or codicil, or either, of the testator. Any judgment heretofore entered un ler this section determining that the wri ing produced is the last will and codicil, or either, of the testator, ahall, upon application of any party to said action, or any person claiming through or under them, and upon notice to such persons as the court at special term shall direct, be amended by such court so as to enjoin all parties to said action, and all persona claiming under the parties to said action subseque tly to the commencement thereof, from bringing or maintaining any action or proceeding impeaching the validity of the probate of the said will and codicil, or either of them, or based upon a claim that such writing is not the last will and codicil, o either, of the testator, and from set'ing up or maintaining such impeachment or claim by way of answer in any action or proceeding. When final judgment shall have been enter d in such action, a copy thereof shall be certified and transmitted to the clerk of the surrogate's court in which sich will was admitted to probate. The action brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate, but persons within the age of minority, of un-ound mind, imprisoned, or bsont from the state, may bring such action two years after such disability has been removed. |