1 Misc. 390 | N.Y. Sur. Ct. | 1892
The prayer of the petition for the relief sought is too broad. On the facts stated it seems the court should have been asked merely to open the decree admitting the will to probate, so that the petitioner may have an opportunity of being-heard in opposition. The decree is conclusive against all who were cited, and, should it be opened for the purpose of making-the petitioner a party, so that he may file objections, it will be unnecessary to cite those who have already been cited. Theeourt had complete jurisdiction of the subject and of those persons, but not of the petitioner. Ho explanation is given as to* why he was not cited. Perhaps he was supposed to be dead, or the executors were uninformed as to his relationship to the-deceased. However that may be, the fact that he is an heir at law and next of bin is not disputed. Of course, had the deceased died intestate, the petitioner would have been entitled to his share of her estate, and he cannot be deprived of his right by an adjudication in a proceeding to Avhieh he was not a party. Had he been cited, he would have had a right to shoAV,, if he could, that the will was invalid on any proper ground. Helias not had such opportunity, and it should be accorded to him. It is always the practice before probate, Avhere it is discovered that a necessary party has not been cited, to suspend the proceeding until he is brought in ; and no good reason is discovered AA'hy such a person, Avho Avas ignorant of the proceeding, should not be made a party, and stand on precisely the same ground as. to his rights as he would have done if made a party originally.
It is claimed on behalf of the executors that it is discretionary
On behalf of the executors it is contended that no “sufficient cause” is shown, as is required by subdivision 6 of section 2481 of the Code. That expression, however, seems to relate only to the granting of a new trial, or a new hearing for fraud, etc., and not at all to opening, etc., of a decree. But while this may be so, abundant cause is shown in the fact that a person who was entitled to be cited was not made a party, and had no knowledge or notice of a proceeding which was calculated to deprive him of his possible rights as heir-at-law and next of kin. This is regarded as quite “sufficient cause.” As some of the estate consisted of realty, yet a considerable portion, to wit, about $65,-