then to any proper person designated by the surrogate. 2 R. S. 71, 14 (2 Edm. 72). Van Giesen v. Bridgford, 18 Hun, 73; Matter of Taylor, 3 Redf. 259: Bowers v. Emerson, 14 Barb. 652; Conklin v. Egerton, 21 Wend. 430; Dominick v. Michael, 4 Sandf. 374; Matter of Anderson, 5 N. Y. Leg. Obs. 302; Clapp v. Meserole, 1 Abb. 362; 1 Keyes, 281; Ex parte Blank, 2 Redf. 443; Bradley v. Bradley, 3 id. 512; Kircheis v. Scheig. 3 id. 277; Pumpelly . Tinkham, 23 Barb. 321; Bain r. Matteson, 54 N. Y. 663; Smith v. Edmonds, 10 N. Y. Leg. Obs. 185; Dunning v. Ocean Bank, 6 Lans. 296; 61 N. Y. 497; Matter of Ward, 6 N. Y. Leg. Obs. 111; 1 Redf. 254; Spinning's Estate, 1 Tuck. 78. 2644. Id.; renunciation or exclusion of persons having prior right.-But where a person applies for letters of administration with the will annexed, as prescribed in the last section, and another person has a right to the administration prior to that of the peti tioner, the application must be made by petition, unless a written renunciation of every person having such a prior right, is filed with the surrogate, and the execu tion thereof is proved to his satisfaction. must pray that all the persons having a prior right, who The petition have not renounced, be cited to show cause, why administration should not be granted to the petitioner. The proceedings thereupon are the same, as upon an application for administration upon the estate of an intestate. 2 R. S. 76, 35 (2 Edm. 77). Matter of Texidor, 2 Brad. 104. 2645. Executor or administrator to qualify.— An executor, from whom a bond is required, as prescribed in this article, or an administrator with the will annexed, must, before letters are issued to him, qualify as prescribed by law, with respect to an administrator upon the estate of an intestate; and the provisions of article fourth of this title, with respect to the bond to be given by the administrator of an intestate, apply to a bond given pursuant to this section; except that, in fixing the penalty thereof, the surrogate must take into consideration the value of the real property, or of the proceeds thereof, which may come to the hands of the executor or administrator, by virtue of any provision contained in the will. Id., 42. Holmes v. Cock, 3 Barb. Ch. 426; Ex parte Brown, 2 Bradf. 22; Bellinger v. Ford, 21 Barb. 311. § 2646. Effect of certain provisions limited.— This article does not vary the effect of a decree for probate, made before this chapter takes effect, as declared in the statutes then in force. New. ARTICLE SECOND. REVOCATION OF PROBATE. SEC. 2647. Persons interested may apply to revoke probate. 2648. When application must be made. 2649. Citation thereupon. 2650. Executor, etc., to suspend proceedings. 2651. Hearing. 2652. Decree. 2653. Notice of decree of revocation. 2647. Persons interested may apply to revoke probate. A person interested in the estate of the decedent may, within the time specified in the next sec tion, present to the surrogate's court, in which a will of personal property was proved, a written petition, duly verified, containing allegations against the validity of the will, or the competency of the proof thereof; and praying that the probate thereof may be revoked, and that the persons, enumerated in the next section but one, may be cited to show cause why it should not be revoked. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. 2 R. S. 61, 30, 31, 32 (2 Edm. 61). Matter of the Will of Kellum, 50 N. Y. 298; reversing, 6 Lans. 1; Vreedenburgh . Calf, 9 Paige, 12; Chapman e. Fish, 6 Hill, 554; Proctor . Wanmaker, 1 Barb. Ch. 302; Newhouse v. Gale, 1 Redf. 217; Fosdick v. Delafield, 2 id. 392. § 2618. When application must be made.- A petition must be presented, as prescribed in the last section, within one year after the recording of the decree admitting the will to probate; except that when the person entitled to present it is then under a disability, specified in section 396 of this act, the time of such a disability is not a part of the year limited in this section. But this section does not affect an application made pursuant to subdivision sixth of section 2481 of this act. New. Fosdick v. Delafield, 2 Redf. 392. 2649. Citation thereupon.- A petition, presented as prescribed in the last two sections, must pray that the citation may be directed to the executor, or administrator with the will annexed; to all the devisees and legatees named in the will; and to all other persons who were parties to the special proceeding in which probate was granted. If a legatee is dead, his executor or administrator must be cited, if one has been appointed; if not, such persons must be cited as representing him, as the surrogate designates for that purpose. 2 R. S. 61, 232 (2 Edm. 61). 2650. Executor, etc., to suspend proceedings. After service upon him of a citation, issued as prescribed in the last three sections, the executor, or administrator with the will annexed, must suspend, until a decree is made upon the petition, all proceedings relating to the estate; except for the recovery or preservation of property, 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. Id., 33. La Bau v. Vanderbilt, 3 Redf. 384. - § 2651. Hearing. 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. Id., 34 and 36, amended and consolidated. Matter of Paige, 62 Barb. 476; Collier v. Idley's Ex'rs, 1 Bradf. 94; Holland v. Ferris, 2 id. 334; Bulkley v. Redmond, id. 281. 2652. Decree.-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. Id., 35, amended. Fay's Will, 1 Tuck. 405; Davis' Estate, Id. 107; Merchant's Estate, 1 Tuck. 17; 1 Redf. 462. 2653. Notice of decree of revocation. - 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. Id., 37, amended. ARTICLE THIRD. PROBATE OF HEIRSHIP. SEC. 2654. Heir, etc., may apply to establish heirship. 2658. Petition to vacate or modify it. 2654. Heir, etc., may apply to establish heirship. -Where a person, seized in fee of real property within the State, dies intestate, or without having devised his real property to specific persons, his heirs, or any of them, may present to the surrogate's court which has acquired jurisdiction of the estate, or, if no surrogate's court has acquired such jurisdiction, then to the surrogate's court of the county where the real property, or any part thereof is situated, a written petition duly verified; describing the real property; setting forth the facts upon which the jurisdiction of the court depends; and the interest or share of the petitioner, and of each other heir of the decedent, in the real property; and praying for a decree establishing the right of inheritance thereto, and that all the heirs of the decedent may be cited to attend the probate of that right. Upon the presentation of such a petition the surrogate must issue a citation accordingly. L. 1873, ch. 555, 2? 1 and 2 (9 Edm. 636). 2655. Citation; appearance of persons interested. -The citation must set forth the name of the decedent and of the petitioner; the interest or share which the petitioner claims; and a brief description of the real property. Any heir of the decedent, who has not been cited, may nevertheless appear at the hearing; and thereby make himself a party to the special proceeding. But this section does not affect a right or interest of such a person, unless he becomes a party. New. See 2616, 2617, ante; also, 2519 and 2523, ante. 2656. What facts to be ascertained; decree there. upon. Upon the return of the citation, the surrogate must hear the allegations and proofs of the parties. If it appears that there is a contest, respecting the heir ship of a party, or respecting the share to which a party is entitled, as an heir of the decedent, the surrogate must dismiss the proceedings. If there is no such contest, he must inquire into the facts and circumstances of the case. The petitioner must establish, by satisfactory evidence, the fact of the decedent's death; the place of his residence at the time of his death; his intestacy, either generally, or as to the real property in question; the number of heirs entitled to inherit the property in question; the name, age, residence, and relationship to the decedent, of each; and the interest or share of each in the property. The surrogate, where these facts are established, must make a decree, describing the property, and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree. L. 1872, ch. 552, 2 1 and 2, amended. L. 1874, ch. 127 (9 Elm. 861). 2657. Decree to be recorded; effect thereof.-An exemplified copy of a decree, made as prescribed in the last section, and of the proofs taken thereupon, may be recorded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when the exemplifications are so recorded, the decree, or the record thereof, is presumptive evidence of the facts so declared to be established thereby. Id. Amended in like manner. 2658. Petition to vacate or modify it. Any person, other than a party to a special proceeding, instituted as prescribed in this article, or the heir, devisee, or assignee of such a party, may, at any time within ten years after a decree establishing the right of inheritance is made therein, present to the court a written petition, duly verified, showing that he has a right, title, or interest in the real property, or a part thereof, which is injuriously affected by the decree; stating that the decree is erroneous in some material particular, specified therein; and praying that the decree may be set aside or modified in that particular, and that all the persons, whose heirship was established by the decree, may be cited to show cause, why the prayer of the petition should not be granted. If an heir has since |