In Re Proving the Last Will & Testament of Kellum
New York Court of Appeals
Appeal by Hiram Kellum,- one of the next of kin of John Kellum, deceased, from an order of the General Term of the Supreme Court in the second judicial department, affirming an order of the surrogate of Queens county, vacating an order to show cause and citation and proceedings for revocation of probate of the will of said John Kellum, which had been formerly proved and recorded before the said surrogate as a will of real and personal property.
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Appeal by Hiram Kellum,- one of the next of kin of John Kellum, deceased, from an order of the General Term of the Supreme Court in the second judicial department, affirming an order of the surrogate of Queens county, vacating an order to show cause and citation and proceedings for revocation of probate of the will of said John Kellum, which had been formerly proved and recorded before the said surrogate as a will of real and personal property. (Reported below, 6 Lans., 1.) The will of John Kellum was admitted to probate and recorded by the surrogate, upon due notice to all the next of kin…
1Opinion of the CourtBapallo, J.
A will may be proved at one and the same time, both as a will of real and personal property. The effect of the probate differs, however, as to each class of property. As to the real estate, the probate is not conclusive either as to the validity or due execution of the will. These questions may be litigated whenever rights to real estate claimed under the will are controverted. But in respect to dispositions of personal property contained in the will, the rule is different. Its admission to probate as a will of personal property is conclusive as to its validity until such probate be reversed…
2Cases cited3 opinions
- Vanderpoel v. . Van ValkenburghNew York Court of Appeals · 1852
- Collier v. Idley's ExecutorsNew York Surrogate's Court · 1849
- Mason v. JonesNew York Surrogate's Court · 1851
3Cited by15 opinions
- In Re the Probate of the Will of GouraudNew York Court of Appeals · 1884
- In Re the Probate of the Last Will & Testament of BartholickNew York Court of Appeals · 1894
- In re the Probate of the Last Will & Testament & Codicils of AustinAppellate Division of the Supreme Court of the State of New York · 1898
- Bailey v. StewartNew York Surrogate's Court · 1876
- In re Bradley's WillNew York Supreme Court · 1893
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