7 Paige Ch. 48 | New York Court of Chancery | 1838
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 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
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
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.