Foster v. Foster

| New York Court of Chancery | Jan 22, 1838

The Chancellor.

The affidavit of . the appellant’s counsel shows a sufficient excuse for not having filed the petition of appeal, and procured the transcript, within the time allowed by the will; and as he has now filed both the petition of appeal and the transcript, the motion would be denied, if that were the only question in the case, upon the payment of the costs which had accrued to the executors at the time Mr. Porter’s affidavit was shown to ther solicitor.

The appeal bond is not in the form required by the existing statute. By a mere inadvertence the original provision of the revised statutes prescribed a form for an appeal bond which was o.n!y applicable to the case of an appeal by •a party resisting the probate of the will, but did not cover the case of an appeal from a sentence or decree against the validity of the will. (2 R. S. 66, § 56.) And as the bond, upon an appeal to this court from the decision of the circuit judge, was required to be in the same penalty and with the same condition as prescribed bylaw upon the appeal from the surrogate to him, the same defect would have existed in the appeal bond here where the circuit judge decided against the validity of the will. (2 R. S. 609, § 101.) The act to amend certain provisions of the revised statutes and in addition thereto, (Laws of 1830, p. 388, § 15,) having amended the section prescribing the form of the bond to be given upon an appeal to the circuit judge, so as to cover the case of an appeal by either party, the bond upon the appeal to this court must now be made to conform to this amendment of the revised'statutes. A defect in the appeal bond, however, may be amended; and in this case it would be a matter of course to allow the appellants to amend their bond, if necessary; as it is very evident that the mistake in the condition of the bond was the error of the surrogate who approved the same. No amendment of this bond is requisite, however, as the condition thereof is sufficiently broad to make the sureties liable for any costs to which the respondents may be entitled on this appeal. It is not necessary that an appeal bond should conform in all respects to the form prescribed by statute. It is enough if it is sufficient in substance, so as to protect and secure to thó party for whose benefit it is given all his rights. (2 R. S. 556, § 33.) It is only where it is so defective that it may not fully secure to him all his rights that an actual amendment of the bond is necessary. (4 Paige’s Rep. 292.) Here the condition of the bond is to pay all costs which shall be taxed against the appellants in the event of their failure on the appeal; instead of being to pay such costs in the event of their failure to obtain a reversal of the decision appealed from. And it., is very evident that the appellants must fail on their appeal, within the express terms, as well as within the intent and meaning of their bond, if they do not obtain a reversal of the decree appealed from.

The objection to the entitling of the defendant’s affidavits is not well taken. The notice of the appeal which is filed in the office of the surrogate, being general in its terms, it cannot be ascertained with any degree of certainty who the appellants intend to make parties to the same, until they have filed their petition of appeal here. Previous to that time, the affidavits.and other papers may be entitled in the same manner as in the proceedings before the surrogate ; but - after this court has become fully possessed of the case by the filing of a petition of appeal, showing who are the respondents as well as who are appellants, the papers as "between such parties, must be entitled accordingly. (Gardner v. Gardner, 5 Paige, 170.) The affidavits on the part of the appellants which have been made since the filing of their petition of appeal, are therefore properly entitled in the appeal cause. And the order to be made on this application must be entitled in the same manner as the last mentioned affidavits.

Upon examining the surrogate’s return I cannot perceive that the legatees who were not of the next of kin to the testator, were before the court as parties to the proceedings before the surrogate ; and they have not taken the proper steps to make themselves parties to this appeal. The application for probate of a will of personal estate may be made either by an executor or by any other person interested in the estate under the will. And where the executor institutes proceedings in his own name only, any other person who has an interest in establishing the will, and who would be precluded if the decision was against its validity, has an unquestionable right to intervene, and thus make himself a party to the proceeding, if he is unwilling to trust the protection of his rights to the party by whom snch proceedings were instituted. (Law's Pr. Eccl. Courts, 70, tit. 29. Cockburn, ch. 6, § 12. Conset, pt. 6, ch. 1, § 1, art. 18, p. 274.) And they probably have the same right to come in as interveners to protect their rights on appeal. But in either case they must come in by a petition, in the proper form, and make themselves' parties to the proceedings, before they can be permitted to take any part therein. The application on the part of the legatees to dismiss this appeal is therefore irregular and unauthorized. It is good, however, as to the executors who were parties to the proceedings before the surrogate and the circuit judge.

There is a fatal objection to the appellants’ right of appeal in this case, which appears upon the papers on ■ the part of the respondents when taken in connection with the transcript of the proceedings as returned by the surrogate. And as this must necessarily defeat them ultimately, unless it can be remedied by an amendment of the appeal itself as well as the appeal bond, it appears to be useless to excuse their default in neglecting to file their petition of appeal and to procure the transcript in due time. The appeal in this case is by the husbands of two of the daughters of the testator, in their own names only as appellants, and not by them and their wives in the right of the latter. Whether the husband of an heir at law or distributee can in any case appeal in his own name, and without joining his wife in such appeal, is a question not necessary to be considered here. It is very clear that he cannot appeal from a decision of the circuit judge, in his own right, upon an affirmance of the sentence or decree of the surrogate, where the appeal from the latter to the circuit judge was only in the right of the wife as one of the next of kin of the testator. Here the appeal to the circuit judge, as appears by the notice of such appeal filed with the surrogate and returned with the transcript, was by the next of kin only_ And if the husbands are to be considered as parties to that appeal, they were only such parties in right of their wives as two of the next of kin of the testator. Their wives therefore should have been joined with them as appellants in this court, in order to represent the same interest here. If the appeal to the circuit judge had been in the proper form, by naming the parties who appealed instead of describing them as the next of kin merely, by which the infant was improperly made a party to the appeal, by her attorney instead of her guardian, this difficulty would probably not have occurred.

I have not examined the question whether the present appeal could be amended, by making the wives the appellants with their husbands, after the time limited by law for appealing had expired. I have, however, looked into the merits of the case so far as to satisfy me that the decisions of the surrogate and of the circuit judge were probably right; so that if the appeal is amendable, it would be a useless expense to the parties to make an application to the court for that purpose. It appears from the evidence that the making of this will was probably the deliberate act of a stubborn headstrong old man, rather than the coerced act of a termagant wife. And the fact that he could not persuade one of his sons-in-law' to turn anti-mason, together with the interference of the friends of his children in his domestic concerns, probably had more effect in inducing him to disinherit those who were the natural objects of his bounty, than any real fear of the broom-stick; with the application of which it appears his wife sometimes threatened him.

The motion of the executors to dismiss the appeal must therefore be granted. But as the notice of this motion was irregular as to some of the applicants, it must be without costs to either party.