247 A.D. 317 | N.Y. App. Div. | 1936
The question here is whether Donald Mackenzie, Jr., has standing under section 147 of the Surrogate’s Court Act to contest the will of the decedent, his grandfather. Donald Mackenzie, son of the decedent, died subsequently to the latter’s death, pending a contest of the will instituted by him and other persons. The surrogate decided the question in the negative, and by the order appealed from struck out the infant s answer containing objections to the probate; so that the said infant, still a party herein, may not be heard in contest of the will.
The facts are: Augustus Mackenzie, alleged testator, died in California March 7, 1934, a resident of Kings county, N. Y. He left a purported last will and testament, which, according to the amended petition for its probate, “ relates to both Real and Personal Property,” and is dated December 11, 1929. The alleged testator left him surviving his widow, Ethel Brown Mackenzie, his second wife; his sons Augustus Mackenzie, Jr., and Frederick J. Mackenzie, issue of a former marriage; his son Donald Mackenzie, and his daughter, Dorothy Mackenzie, the last two named being the issue of said alleged testator and Ethel Brown Mackenzie, his widow. Said Augustus Mackenzie, Jr., Frederick J. Mackenzie, Donald Mackenzie and Dorothy Mackenzie constituted the alleged testator’s sole heirs at law and next of kin. Donald Mackenzie died May 12, 1934, leaving him surviving his widow, Caroline Mackenzie, subsequently duly appointed administratrix of bis estate, and three infant children, Augustus Mackenzie, 2d, Pauline Mackenzie and Donald Mackenzie, Jr. Donald, Jr., is not mentioned in the alleged will as he was born after it was made.
Objections were filed to the probate thereof by Ethel Brown Mackenzie, the alleged testator’s widow, and by Donald Mackenzie and Dorothy Mackenzie, her children by him. On the death of Donald, his widow, Caroline G. Mackenzie, thus duly appointed administratrix, continued the contest in her representative capacity. Her children, Augustus, 2d, and Pauline, who were born before the decease of the alleged testator and were mentioned in his will, were cited upon the "probate. Donald Mackenzie, Jr., was not cited. When the trial of the contest was imminent, a suggestion was made that a citation should be issued to Donald Mackenzie, Jr. Thereafter such citation was duly issued, and a special guardian was duly appointed for him. Such special guardian filed an answer attack
The surrogate held in effect (Matter of Mackenzie, 156 Misc. 616) that Donald, Jr., was not a person authorized to file objections to probate within the provisions of section 147. In this conclusion the learned surrogate erred. Donald, Jr., is a person contemplated as an objectant by section 147 (supra). Thereunder, permission to file objections to probate is accorded (a) to "Any person interested in the event as devisee, legatee or otherwise, in a will or codicil offered for probate,” or (b) " interested as heir-at-law, next of kin, or otherwise [italics mine] in any property, any portion of which is disposed of or affected, or any portion of which is attempted to be disposed of or affected, by a will or codicil offered for probate,” or (c) “ is interested as devisee, legatee, executor, testamentary trustee or guardian in any other will or codicil alleged to have been made by the same testator and not duly revoked by him.”
Donald, Jr., manifestly has no standing to file objections under subdivisions (a) or (c) of said classification; for (a) he has no interest in the event as " devisee, legatee or otherwise ” in the will sought to be probated, not being mentioned therein; and (c) he is not interested in any of the prescribed capacities in any other unrevoked will or codicil of the same testator. Hence if he has standing to file objections, it must be because he is (b, supra) “ interested as heir-at-law, next of kin, or otherwise ” in property disposed of or attempted to be disposed of in the will. Said infant was neither
If the alleged testator, by reason of the invalidity of his will, probate of which is sought, in fact died intestate, his real property descended, and the surplus of his personal property, as that surplus is defined in the opening paragraph of section 83 of the Decedent Estate Law, became distributable to his widow and children, as follows: One-third part to the widow and the residue in equal portions to his four children. (Dec. Est. Law, § 83, subd. 1.) One of the four children was Donald Mackenzie. When the latter subsequently died on May 12, 1934, intestate, the real and personal property coming to him from his father (thus intestate) under the same statute (Dec. Est. Law, § 83, subd. 1), manifestly would descend as to the real estate and become distributable, as to the personal property, to Donald Mackenzie’s widow and his three children, including the infant Donald Mackenzie, Jr. Hence, clearly, said infant on his father’s death became, and remains, a person “ interested * * * otherwise ” (Surr. Ct. Act, § 147) in “ property * * * disposed of or affected, or * * * attempted to be disposed of or affected,” by the will sought to be probated. The word “ otherwise ” is of broad significance and covers the interest which the infant asserts here.
Further, where, as here, a contest has been instituted by a person entitled to file objections, the death of that contestant does not cause an abatement of the proceeding. “A probate proceeding does not abate because of the death of the contestant or the executor or any of the next of kin; the surrogate must take proof and determine whether the paper purporting to be the last will and testament of the decedent is entitled to probate. Van Alen v. Hewins, 5 Hun, 44.” (Fowler, S., Matter of Herrmann, 91 Misc. 464, 465; affd., 172 App. Div. 907; affd., 219 N. Y. 567; see Matter of Burridge, 234 App. Div. 457, 459.) As this proceeding did not abate on Donald Mackenzie’s death, the intervention of Donald, Jr., taking by descent (§ 83, subd. 1, supra), upon his father’s
The order of the Surrogate’s Court of Kings county striking out the answer of the infant, Donald Mackenzie, Jr., should be reversed
Lazansky, P. J., Young, Davis and Johnston, JJ., concur.
Order of the Surrogate’s Court of Kings county striking out the answer of the infant, Donald Mackenzie, Jr., reversed on the law, with ten dollars costs and disbursements, payable out of the estate, and motion denied, with ten dollars costs.