upon the trial of an action. Where a written will is proved, as prescribed in this section, it must be filed and remain in the surrogate's office.

25

L. 1837, ch. 460, § 20 (2 Edm. 491 ); 2 R. S. 58, ?? 13, 16,†17 (2 Edm. 59, 60), Lawrence . Norton, 45 Barb. 448; Brown 7. Clark, 77 N. Y. 369; Walshe's Estate, 1 Tuck. 132; Reeve v. Crosby, 3 Redf. 74; Williamson v. Williamson, 2 id. 449; Peeble's Case, id. 226; Theo. Sem. of Auburn N. Y. 422; Jauncey e. Thorne, 2 Barb. Ch. 40; Chaffee r. Bap. Miss. Con., 10 Paige, 85; Humphrey's Estate, 1 Tuck. 142; Cornwell . Wooley, Abb. Ct. App. Dec., 441; 43 How. 475; 47 Barb. 327; L. 1880, ch. 36, 22 2538, 2510. Trustees Auburn Theo. Sem. v. Calhoun, 62 Barb. 381; Butler. Benson, 1 Barb. 526; Irwin e. Irwin, 1 Redf. 495; Morris v. Porter, 52 How. 1; Thompson e. Leastedt, 3 Hun, 395.

2621. Proof of lost or destroyed will. A lost or destroyed will can be admitted to probate in a surrogate's court, but only in a case, where a judgment establishing the will could be rendered by the supreme court, as prescribed in section 1865 of this act.

L. 1870. ch. 330, 18; 2 R. S. 68, 67, b. (2 Edm. 69). Sheriden ". Houghton, 6 Abb. N. C. 231; Bowen v. Idley, 6 Paige, 46; Grant v. Grant, 1 Sandf. Ch. 235; Shultz e. Shultz, 35 N. Y. 653; Voorhees v. Voorhees, 39 id. 463; 50 Barb. 119; Everitt v. Everitt, 41 Barb, 385.

§ 2622. Probate not allowed, unless surrogate satisfied, etc.-Before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied of the genuineness of the will, and the validity of its execution. Before admitting a written will to probate, the surrogate may, in his discretion, require proof of the circumstances attending the execution, the delivery, and the possession thereof, or any of them, to be made by the affidavit, or the testimony at the hearing, of the person who received the will from the testator, if he can be produced, and, also, of the person presenting it for probate.

L. 1837, ch. 460, 17, and part of 10 (4 Edm. 489, 490). Nelson r. McGiffert, 3 Barb. Ch. 158; Reeve v. Crosby, 3 Redf. 74; Odell v. Ludlum, id. 181, n.; Storm's Will, id. 327; La Bau Vanderbilt, id. 384; Booth . Kitchen, id. 52; Mairs r. Freeman, id. 181; Proctor v. Clarke, id. 445; Taylor Will Case, 10 Abb. N. S. 300; Johnson v. Hicks, 1 Lans. 150.

§ 2623. Will; when sufficiently proved. If it appears to the surrogate that the will was duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint; it must be admitted to probate, as a will valid to pass real property, or personal property, or both, as the surrogate determines, and the petition and citation require, and must be recorded accordingly.

The decree admitting it to probate must state whether the probate was or was not contested.

2 R. S. 58, 14 (2 Edm. 59); L. 1837, ch. 460, 18 (4 Edm. 490). Jauncey v. Thorne, 2 Barb. Ch. 40; James v. Beasley, 14 Bun, 520: Dack v. Dack, 19 id. 630; Brown v. Clark, 77 N. Y. 369: Colt . Patchen, 77 id. 533; Gardiner v. Gardiner, 34 id. 155; Lake r. Ranney. 33 Barb. 49; Delafield v. Parish, 25 N. Y. 9:1 Redf. 130: Kingsley . Blanchard, 66 Barb. 317; Ean e. Snyder, 46 id. 230; Weir r. Fitzgerald, 2 Bradf. 42; Mowry e. Silber, id. 133; Van Pelt e. Van Peit. 30 Barb. 134; Ciark e. Fisher, 1 Paige, 171; Kinne v. Johnson, 60 Barb. 69; Turhune v. Brookfield, 1 Redf. 220; Bleecker . Lynch, 1 Bradf. 458: Reynolds v. Root, 62 Barb. 250; Crolens v. Stark, 7 Lans. 311 64 Barb. 112; Forman v. Smith, 7 Lans, 443; Horn r. Pullman, 72 N. Y. 269: Wade v. Holbrook, 2 Redf. 378; Van Guysling r. Van Kuren, 35 N. Y. 70; Dumond . Kift, 7 Lans. 465; Rolwagen v. Rolwagen, 3 Hun. 121; 5 T. & C. 402; 63 N. Y. 504; Nexsen e. Nexsen, 3 Abb. 360; 2 Keyes, 229; Thompson r. Thompson, 21 Barb. 107; Clapp . Fullerton, 34 N. Y. 190; Seamans' Friend Soc. v. Hopper, 33 id. 619: 43 Barb. 625: Lathrop Borden, 5 Hun, 560; Lathrop v. Am. Board of For. Miss., 67 Barb. 30; O'Neil v. Murray, 4 Bradf. 311: Allen . Public Administrator, 1 d. 378; Gombault . Pub. Administrator, 4 id. 226; Searles v. Harvy, 6 Hun, 658; Matter of Taylor, 1 Edm. 375, cir. ct.; Brown v. Torrey, 24 Barb. 583 Fowler v. Ramsdell, 4 Alb. L. J. 94; Stanton v. Wetherwax, 16 Barb. 259; Down v. McGourkey, 9 Week. Dig. 5; Gardner v. Gardner. 22 Wend. 526; Julke e. Adam, 1 Redf. 454; Peck v. Cary, 27 N. Y. 9; s. c.. 38 Barb. 77: Lewis e. Jones, 50 id. 645; Burke's Will, 2 Redf. 239: Brick v. Brick, 66 N. Y. 144; Wait r. Breeze, 18 Hun, 403; Children's Aid Soc. v. Loveridge, 70 N. Y. 387; Booth v. Kitchen, 3 Redf. 52: Newhouse r. Godwin, 17 Barb. 236; Hazzard r. Hefford, 2 Hun, 445; Clarke r. Davis, 1 Redf. 249: Blanchard v. Nestle, 3 Den. 37; Cudney r. Cudney, 68 N. Y. 148; Baker's Will, 2 Redf. 179; Calhoun . Jones, id. 34; Fagan e. Dugan, id. 341: McLaughlin e. Devitt, 63 N. Y. 213; Marvin e. Marvin, 3 Abb. 192: Tyler e. Gardiner, 35 N. Y. 559, 592; Lee r. Dill, 11 Abb. 214; Wightman v. Mason, 8 Week. Dig. 439; Hook r. Pratt, 8 Hun, 102; Gamble v. Gamble, 39 Barb, 373; Matter of Will of Diez, 50 N. Y. &

2624. Validity and construction of testamentary provisions. But if a party expressly puts in issue, before the surrogate, the validity, construction, or effect of any disposition of personal property, contained in the will of a resident of the State, executed within the State, the surrogate must determine the question upon rendering a decree; unless the decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in the last section.

L. 1870, ch. 359, 11; see 2691, post. Chamberlain v. Chamberlain, 43 N. Y. 424: Harris . Am. Bible Soc., 2 Abb. 316; 4 Abb. N. S. 421; 46 Barb. 470: L. 1860, ch. 360. Beyan e. Cooper, 72 N. Y. 317; Parks e. Parks, 9 Paige, 107; Dubois v. Ray, 35 N. Y. 162; Bates v. Hillman, 43 Barb, 645; Mann e. Mann, 14 Johns. 1; Howland . Union Theo. Sem., 3 Sandf. 82: Christie r. Phyfe, 19 N. Y. 344; Clark . Lynch, 16 Barb. 68; Sherry v. Lozier, I Bradf. 437: Westcott v. Cady, 5 Johns. Ch. 334: Turpenning v. Skinner, 30 Barb. 373: Despard r. Churchill, 53 N. Y. 192; Waters r. Cullen, 2 Bradf. 354: Matter of Forman, 54 Barb. 274: McLaughlin's Estate, 1 Tuck. 79; Matter of Gilman, 38 Barb. 364; Hillis e. Hillis, 16 Hun, 76; Matter of Jennings, 10 N. Y. Leg. Obs. 253; Van Wert v. Benedict, 1 Bradf. 114; Danser v. Jeremiah, 3 Redf. 130.

2625. Surrogate's decision on probate.

- Where

the surrogate decides against the sufficiency of the proof, or against the validity of a will, or upon the construction, validity, or legal effect of any provision thereof, he must make a decree accordingly; and, if required by either party, he must enter in the minutes the grounds of his decision.

L. 1837, ch. 460, 21 (4 Edm. 491), amended. Matter of Gilman, 38 Barb. 364.

2626. Probate; how far conclusive as to personalty. 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; except that a determination, made under section 2624 of this act, is conclusive only upon a party who was duly cited, or a person claiming from, through, or under him.

2 R. S. 61,29 (2 Edm. 61). Hunt r. Johnson, 19 N. Y. 279; Jackson v. Walsh, 14 Johns. 407; see 2 2647-2653: Bogardus v. Clarke, 4 Paige, 623; Vanderpoel r. Van Valkenburgh, 6 N. Y. 190; Colton v. Ross, 2 Paige, 396; Clark v. Fisher, id. 171; Pritchard v. Hicks, id. 270; Heyer v. Burger, Hoffm. 1; Campbell v. Logan, 2 Bradf. 90; Morrell v. Dickey, 1 Johns. Ch. 153; Baily r. Hilton, 14 Hun, 3.

$ 2627. Id.; as to realty. A decree, admitting to probate a will of real property, made as prescribed in this article, establishes, presumptively only, all the matters determined by the surrogate, pursuant to this article, as against a party who was duly cited, or a person claiming from, through, or under him; or upon the trial of an action, or the hearing of a special proceeding, in which a controversy arises concerning the will, where it is proved that the real property in question has been uninterruptedly held, under the will, for at least twenty years before the action was commenced, or the special proceeding instituted. Where the decree is produced in evidence, in favor of or against a person, or in a case, specified in this section, the testimony taken in the special proceeding, wherein it was made, may be read in evidence, with the same force and effect, as if it was taken upon the trial of the action, or the hearing of the special proceeding, wherein the decree is so produced.

2 R. S. 59, 18 (2 Edm. 60). Carroll v. Carroll, 60 N. Y. 121; Bloomer v. Bloomer, 2 Brad. 339; Matter of Will of Kellum, 50 N. Y. 298; Smith's Estate, 1 Tuck. 108.

2628. When purchaser from heir protected notwithstanding a devise. The title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the property made by the latter, unless within four years after the testator's death, the will devising the same is either admitted to probate and recorded as a will of real property in the office of the surrogate having jurisdiction, or established by the final judgment of a court of competent jurisdiction of the State, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; or without the State; or, if the will was concealed by one or more of the heirs of the testator, the limitation created by this section does not begin until after the expiration of one year from the removal of such a disability, or the delivery of the will to the devisee or his representative, or to the proper surrogate.

1 R. S. 748, 3 (1 Edm. 699).

§ 2629. Will certified, or record thereof, may be read in evidence.-The surrogate must cause to be indorsed upon, or annexed to, the original will admitted to probate, or the exemplified copy, or statement of the tenor of a will, which was admitted without production of an original written will, a certificate, under his hand, or the hand of the clerk of his court, and his seal of office, stating that it has, upon due proof, been admitted to probate, as a will valid to pass real or personal property, or both, as the case may be. The will, or the copy or statement, so authenticated, the record thereof, or an exemplified copy of the record, may be read in evidence, as proof of the original will, or of the contents or tenor thereof, without further evidence, and with the effect specified in the last two sections.

2 R. S. 58, 15 (2 Edm. 59); 2 R. S. 80, 58 (2 Edm. 82). Jackson v. Walsh, 14 Johns. 407.

§ 2630. Recording wills proved elsewhere within the State. A transcript of a will of real property, proved and recorded in any court of the State, of com

petent jurisdiction, and of all the notices, process, and proofs relating to the same, must, when duly exemplified, be recorded, upon the request of any person interested therein, in the surrogate's court of any county, in which real property of the testator is situated.

L. 1837, ch. 460, 68 (4 Edm. 499).

§ 2631. Records of certain wills heretofore proved; how far evidence.-The exemplification of the record of a will, proved before the judge of the former court of probates, and recorded in his office before the first day of January, in the year 1785, certified under the seal of the officer having custody of the record, must be admitted in evidence in any case, after it has been made to appear that diligent and fruitless search has been made for the original will.

2 R. S. 59, 20 (2 Edm. 60).

2632. The same. record of a will, which was, before the first day of JanThe exemplification of the uary in the year 1830, admitted to probate, and recorded in the office of a surrogate of the State, or proved before the surrogate or judge of probate, or other officer, exercising the like jurisdiction, of another State, must, when certified by the officer having by law, when the certificate was made, custody of the record, be admitted in evidence, as if the original will was produced and proved. Where the exemplification is certified by a surrogate of the State, it must be so admitted without the proofs and examinations taken upon the probate thereof; and the recording of the will is evidence that it was duly admitted to probate.

L. 1857, ch. 173, amended; L. 1871, ch. 361, 1 (9 Edm. 86).

2633. Id.; as to wills of real property.-A will of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of chancery, or before a surrogate of the State with the certificate of proof thereof annexed thereto, or indorsed thereon, may be recorded in the office of the clerk or the register, as the case requires, of any county in the State, in the same manner as a deed of real property. Where the will relates to real property, the executor, or administrator, with the will annexed, must cause the same to be so recorded, in