Misc.] County Court, Queens County, January, 1918. tween the attorneys for the plaintiff and the attorneys for the defendant Beta Building Co., Inc. the matter was referred to me for decision upon the demurrer. The action is purely an action in equity and before considering the question raised by the demurrer we must dispose of a very important question as to the jurisdiction of this court. The County Court is a court of limited jurisdiction and has no equity jurisdiction except such as is provided in special cases in the Code, that is to say, in an action to foreclose a mortgage or partition of real estate and then only where the equitable relief is incident to the foreclosure or partition of real estate. A determination of the issues raised by the complaint would involve the question of title to real estate. This court has no jurisdiction in actions to determine the title to real estate except where such questions arise as incident to a foreclosure or partition of real estate. Wilkins v. Williams, 3 N. Y. Supp. 897. The parties to this action cannot by consent confer jurisdiction of the subject matter in litigation upon the court, it being a court of limited jurisdiction. Albany Brewing Co. v. Barckley, 70 App. Div. 260. Section 340 of the Code of Civil Procedure is very specific and clear in specifying the kind and character of actions of which the County Court has jurisdiction. I find no provision, however, in that section or elsewhere which authorizes this court to take jurisdiction of the subject matter of this action. It is therefore obvious that the court cannot pass upon the demurrer and must dismiss the complaint. Judgment accordingly. 24 Surrogate's Court, Madison County, January, 1918. [Vol. 102. Matter of the Estate of ELIZABETH S. EATON, Deceased. In re Petition of WILLIS L. WATKINS for Ancillary Administration. (Surrogate's Court, Madison County, January, 1918.) Wills - probate of codicils — executors and administrators — Surrogate's Court-when application for ancillary letters of administration denied - Code Civ. Pro. § 2629. A will executed in the state of New York and a codicil thereto executed in the state of Michigan, where testatrix resided at the time of her death, were, after a contest, duly admitted to probate in the state of New York, and an account by the executrix of the executor of his proceedings under the will was duly approved and settled by the surrogate and letters of administration with the will annexed issued. Although exemplified copies of both the will and the codicil were offered and used in a probate proceeding instituted in the state of Michigan during the pendency of the first probate proceeding the will alone was admitted to probate and letters of administration with the will annexed granted to the petitioner herein. Upon his application for ancillary letters of administration it appeared that no appeal was ever taken from the decree of probate made by the Surrogate's Court in this state; that the changes made in the codicil not only affected the rights of certain persons but also the rights of all the residuary legatees; that the most important difference between the combined will and codicil as probated here and the will as probated in the sister state grows out of the provisions of the codicil for the support, care and maintenance of the mute brother of the testatrix. Held, that so far as property in this state was concerned the will with the codicil was the real will and not the will probated without the codicil and the application should be denied. That while it might conform to the letter of section 2629 of the Code of Civil Procedure to grant the ancillary letters of administration prayed for, it would violate its spirit and be an idle ceremony. APPLICATION for ancillary letters of administration. Misc.] Surrogate's Court, Madison County, January, 1918. John A. Johnson (A. F. Freeman and B. M. Thompson, of counsel), for Willis L. Watkins, petitioner. Carlos J. Coleman, for Emma A. Storms, administratrix C. T. A. of Elizabeth S. Eaton, deceased. Frank E. Jones, in person and as special guardian and committee of George Albert Storms, an incompetent. SENN, S. This is an application by Willis L. Watkins, as administrator with the will annexed, of the last will and testament of Elizabeth S. Eaton, deceased, for ancillary letters of administration in Madison county, based upon the probate of said will in the state of Michigan, petitioner having been appointed such administrator with the will annexed under the Michigan probate. The legal propositions involved in the administration of this estate have come to the present surrogate as a kind of legacy, at least they have existed during the terms of two former surrogates and had numerous days in court. In addition, the conflicting contentions of the various parties in interest have been in the federal courts enough times so that they appear in at least six reported federal cases. With the various proceedings in Madison county Surrogate's Court, and appeals therefrom, the certified and exemplified proceedings in the Michigan courts filed here and the various decisions of the federal courts filed in this office, there is an accumulation of petitions, orders, decrees, decisions, exhibits, letters and other papers too numerous to mention, of such volume and magnitude that, if they do not actually rival those portrayed by Dickens in Jarndyce and Jarndyce, they at least serve to mitigate the author's evident exaggeration. Surrogate's Court, Madison County, January, 1918. [Vol. 102. Still, out of the accumulated mass of files, records and reported decisions, the following condensed history of the case stands out with sufficient clearness to serve the purposes of the decision on this applica tion, viz.: Elizabeth S. Eaton of Ann Arbor, Mich., died at her home about May 17, 1906, leaving a last will and testament dated October 31, 1901, and a codicil to this will dated March 31, 1906. The will was executed in the state of New York at the home of Hervey E. Eaton, her brother-in-law, whom she named as executor, and with whom she left the will. The codicil was executed in Michigan and by Mrs. Eaton forwarded to Mr. Eaton, directing him to attach it to the will, which was done. When testatrix died she had household furniture, etc., in the state of Michigan worth approximately $575. Her will, codicil and remaining property consisting mainly of bonds, certificates of stock and securities, amounting to about $50,000, were in the hands of Hervey E. Eaton, the executor named in the will, who on May 29, 1906, offered the will and codicil in the Madison county Surrogate's Court, especially the codicil, for probate. Probate of the will and codicil, especially the codicil, was contested by Susan C. Higgins, a sister of testatrix and a legatee under the will. Such proceedings were duly had upon the issues raised by the petition, objections and contest that a decision was reached by the surrogate admitting the will and codicil to probate and granting letters testamentary to said Hervey E. Eaton. No appeal was ever taken from this decision and the will and codicil are now in force in this county as the will and codicil of Elizabeth S. Eaton. The will and codicil were recorded November 12, 1906. While the contested proceedings were still pending Misc.] Surrogate's Court, Madison County, January, 1918. and about July 23, 1906, said Susan C. Higgins filed a petition for the probate of said will in the Probate Court of Washtenaw county, Mich., being the county where testatrix resided at the time of her decease. So far as I can learn from the papers on file here, no effort was made to probate the codicil in the Michigan court, although exemplified copies of the will and codicil probated here were offered and used in that proceeding. At any rate, such proceedings were had in the Probate Court of Washtenaw county that on November 30, 1908, two years after the probate in Madison county, the will was by the Michigan court admitted to probate and the codicil denied probate and letters of administration with the will annexed were thereupon granted to Willis L. Watkins, the petitioner herein, who is still acting thereunder. Hervey E. Eaton continued to act as executor until about August, 1916, when he died leaving a will which was duly probated and Olivia C. Eaton, his widow, nominated as such in the will was duly appointed executrix. She filed an account of her husband's proceedings as executor, which has been duly approved and settled by the surrogate, the estate of Hervey E. Eaton duly released, and letters of administration with the will annexed of the will and codicil have been granted to Madison County Trust and Deposit Company and to Emma S. Storms who has duly qualified and is now acting as such. Thus there are at present two administrations, one of the will and codicil in this county and one of the will only in the state of Michigan. In effect, the situation is the same as though two wills of the same testatrix, made at different dates, had been probated, one in Michigan and one here. The most important difference between the combined will and codicil as |