¶1Now it seems to me quite clear that the allegations in the complaint, which for the purposes of this hearing the demurrer admits, entitle the plaintiffs to substantial relief. It is, however, objected on the part of the defendant, as a ground of demurrer, that the complaint does not allege that the will has been admitted to probate in the surrogate’s court, and that until the will is duly probated this court has not jurisdiction to entertain an action to protect or secure any right or interest in favor of any beneficiary named in the will.
¶2This view may in the end prevail in so far as the personal estate is concerned, for it has been decided that nothing but the probate or letters, of administration, with the will annexed, was legal evidence of the will in all questions relating to the personalty (Tarver agt. Tarver, 9 Peters, 174; Armstrong agt. Lean, 12 Wheat., 175).
¶3But the plaintiffs’ claim, in so far as the real estate is concerned, depends upon the will itself, and not upon its probate.
¶4At most the probate of a will in this state is only presumptive evidence as to real property (Thorn agt. Sheil, 15 *325Abb. [N. S.], 81; Cowen & Hill’s Notes to Phil. Ev., 1348).
¶5An omission to have a will probated within four years after the death of the testator exposes the persons interested under the will to loss from a conveyance to a purchaser in good faith from the heir of the person who died seized of the property (Code Civ. Pro., sec. 2628).
¶6To guard against such consequences a probate is needed, but that does not affect the question now considered.
¶7It was doubtless the duty of the defendant himself, an executor named in the will, and having its custody, to have offered the will for probate in view of the infancy of the plaintiffs, but this he seems, from the allegations of the complaint, to have by design omitted.
¶8The defendant also objects that this is an action in the nature of a suit in equity to establish a will, and that for such reason it is demurrable, because the surrogate’s court is established to take proof of wills and to admit them to probate.
¶9But in this connection it is to be observed, and 1 think it is a'complete answer to the objection, that the complaint alleges that Eliza Wilt made and executed on the 17th day of January, 1871, her last will and testament in accordance with the laws of the state of New York.
¶10That allegation is admitted by the demurrer, and it is a large concession, for it establishes the fact of a legal will and testament.
¶11That is an admission of the principal fact, through which plaintiffs’ right rises, and is, in my judgment, sufficient to sustain the complaint.
¶12Should the defendant, by answer, deny the fact of the will, then a question may arise as to how it shall be proved. But that will be disposed of by the judge upon the trial.
¶13It becomes in this view not a question of pleading, but one of evidence. And I can see no good reason, when the object of probate is considered, why the will may not be offered for *326probate at any time before the trial, should the defendant answer upon the merits and put in issue the making of the will.
¶14For these reasons I conclude that there must be judgment for the plaintiffs on the demurrer, with liberty to the defendant to answer on payment of costs.