In the Matter of the Estate of John H. Hasselbrook, Deceased. Charles A. Hasselbrook, as Administrator with the Will Annexed of John H. Hasselbrook, Deceased, Appellant; John H. Dreyer, Respondent

In the Matter of the Estate of John H. Hasselbrook, Deceased. Charles A. Hasselbrook, as Administrator with the Will Annexed of John H. Hasselbrook, Deceased, Appellant; John H. Dreyer, Respondent. Second Department, November 27, 1908. Surrogate — probate — form of decree — reservation- of issues as to validity — construction of will — right of heir to accounting. A decree probating a'will should state whether the probate was contested. A mere decree of probate is conclusive only as to its formal validity. Where the surrogate on probate expressly reserved all questions as to the interpretation, validity and effect of the will, an heir not named therein and not cited on a prior accounting by an administrator with the wilt annexed is entitled to an order directing the administrator to account, and reserving all questions as to the construction and validity of the will. ' On such accounting the parties to the original accounting should- be cited. Appeal by Charles A. Hasselbrook, as administrator, etc., from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 30th day of June, 1908, directing the said administrator to file his account herein. In 1905 the decedent died, leaving a last will and testament, which was admitted, to probate in that year by the surrogate' of Kings county. The decedent left.him surviving three children, who aré named in the will as his sole legatees arid devisees, and a grandson, the son of a deceased daughter, who is the petitioner in these proceedings, and is not named in the will. The petitioner was cited and appeared by his special guardian upon the probate of the will. A judicial settlement of the administrator’s account was had and distribution was made in accordance with the decree of the Surrogate’s Court oil March 19, 1906. The petitioner was not cited, nor did he appear in the accounting proceedings. On February 6, 1908, a petition was filed asking for a citation requiring the appellant to show cause why he should not make and settle his account as administrator c. t. a. Citation was then issued in accordance with the prayer of said petition. The order directs the administrator to account, and reserves as to all parties all question as to the construction and interpretation, validity and effect of the said will. The appellant’s answer alleged, inter alia, that the will bequeathed the property to the persons named therein, and that the respondent Was riot a creditor nor a person interested in the estate of the decedent. Benjamin F. Kraft [Lewis M. Scheuer with him on the brief], for the appellant. Nicholas Dietz, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The decree for probate should have stated whether probate was contested. (Code Civ. Proc. § 2623.) But the decree is not in this record,, and all that appears therein is that there was probate. The case then is not complicated by the fact that the petitioner appeared by special guardian at the probate, inasmuch as mere probate is conclusive only as to formal validity. (Jessup Surr. [2d ed.] 187; Redf. Surr. [5th ed.] 855, 856.) As I read the judgment in Matter of Killan (172 N. Y. 547), the learned surrogate is right in his disposition of this uetition. As he has expressly reserved all questions, as to the construction, interpretation, validity and effect of the will, in so far as the same may arise or be necessary to pass, on in the disposition of these proceedings,, he can upon this proceeding determine, first whether the petitioner has any standing ; and if so, he can order the accounting, But the citation should be so amended as to bring in the parties who were cited to the original account or appeared upon it. (See Matter of Killan, supra) The proceedings should be thus modified and as thus modified the order should be affirmed, but without costs. . . Woodward, Gaynor, Rich and Miller, JJ., concurred. Order of the Surrogate’s Court of Kings county modified- in accordance with opinion and as so modified affirmed, without costs.