PECKHAM, J.

In providing for the distribution of the personal estates of intestates the statute prohibits any representation among collaterals after brothers' and sisters' children. (2 R.S. 96, sec. 75, subdiv. 11.) It is, therefore, claimed that Mrs. Kirley had no right to appeal from the first decree of the surrogate, so far as that decree admitted the instrument to probate as a will of personal property. In fact she did appeal from the whole decree. We do not think it necessary, in this case, to go back of the reversal by the General Term of the decree of the surrogate admitting the will to probate and directing the trial of the issues of fact by a jury. The General Term had jurisdiction of the case by virtue of the appeal. If the court acted erroneously in reversing the probate of the instrument as a will of personal property, it did not act without jurisdiction, and its order, even though erroneous in that respect, was not void. At the worst it was an error of law, and if inadvertent merely the proponent could have moved in that court to correct the form of the decree by limiting it to real estate, or in either event he could have appealed to this court. Although we cannot review an order of the General Term reversing on the facts a decree of the surrogate admitting a will to probate and directing a trial by jury, yet, if in such an order an error of law is made, that error can be corrected by appeal. ( Sutton v. Ray, 72 N.Y. 482; Burger v. Burger, 111 id. 523.)

Having gone down and tried the whole case before the jury, and the surrogate having entered the decree upon that verdict, refusing probate of the instrument, and the General Term having affirmed it, the proponent cannot on this appeal from the last order of the General Term review its first order under a claim that it is an intermediate one, necessarily affecting the order last appealed from. ( Matter of Will of Budlong, 126 N.Y. 423.) The section of the Code pertaining to appeals from surrogates' decrees (§ 2571) has the same purpose as those sections (§§ 1316, 1317) which relate to appeals from orders and judgments in other courts. Having jurisdiction the Supreme Court reversed the whole decree of the surrogate on questions of fact and directed the trial of the issues by jury. The criticisms of counsel upon the reasons given by the General Term for a reversal are not material. The court does reverse the surrogate's decree upon a question of fact. It says so in its order of reversal. We are concluded by it.

Coming down to the trial before the jury we find the result of that trial to be in favor of the contestant. With the answers of the jury to the questions propounded, the parties appeared before the surrogate and he was then called upon to enter the appropriate decree. These answers show that the will was procured by fraud, undue influence and deceit on the part of the executor and another person also a legatee, and that at the time of the execution thereof the testator was of unsound mind and memory and was incapable of making a will. The finding of the jury, standing as it did in full force, was the exact equivalent to a finding by the surrogate to the same effect. Upon such a finding based upon evidence legally taken has the surrogate any legal right to admit a will to probate for any purpose? The statute directs that the surrogate before admitting a will to probate 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. (Code of C.P. § 2622.) The same proof is required in regard to wills of both real and personal estate upon the question stated in the above section. When the question is properly raised by a party having the right to raise it in some capacity, and where, upon the investigation which succeeds, the surrogate becomes satisfied and finds that the testator had not mental capacity to make a will, and that the instrument offered for probate was obtained by fraud and undue influence, we think the surrogate has the right, and that it is his duty, to wholly refuse to probate such an instrument, even though the contestant who prosecutes the controversy is only interested as an heir at law and is not one of the next of kin. The finding necessarily shows that no will was ever executed according to law, and the surrogate is not obliged to stultify himself by admitting the will to probate as a will of personal property only, because of the absence of some one contesting such probate as next of kin. There was a valid contest by one who had a legal standing in court, and upon that contest the fact appeared that the alleged testator was incapable of making any will, on the ground of mental incapacity. The surrogate's duty under the statute is to inquire and become satisfied of the existence of the necessary facts, and having that right and duty, if he become satisfied and finds as is herein stated, he ought to refuse probate of the instrument for any purpose.

This is not the same as the case of In re Kellum ( 50 N.Y. 298). There the will relating to both real and personal estate had been duly admitted to probate, and as a will of personal estate the probate was conclusive. The surrogate's judgment had never been reversed. But by the provisions of the Revised Statutes (2 R.S. 61, §§ 30 to 39) the next of kin were permitted within one year after the probate to contest the validity of the will as a will of personal property. It was held by this court that the statute applied in the case of a will which related to both real and personal property, and that the next of kin might within the year contest such will as one of personal property, while the probate of the instrument as a will of real property would stand unaffected by such contest or its result. The terms of the statute limited the contest to one regarding the will as relating to personal estate only, and hence the probate already duly made and existing as relating to real estate was not to be affected. In this case the Supreme Court set aside and reversed the whole decree, and the surrogate, upon a proper contest prosecuted by one having a standing in court and an interest to be affected, has now found the proposed will was not duly executed, and even when the contest is made by an heir at law only, the finding of the surrogate prevents the probate of the instrument as a valid will for any purpose whatever. The fact that there is contained in the record here a memorandum of the surrogate showing his reason for not limiting his decree to a refusal to admit the will to probate as one relating to real estate only, is of no importance. The action of the surrogate was valid in refusing probate to the will for any purpose, and his reasons are not material.

The judgment of the General Term should, therefore, be affirmed, with costs against the proponent personally.

All concur.

Judgment affirmed.