In re Proving the Last Will & Testament of Evans

2 Mills Surr. 103 | N.Y. Sur. Ct. | 1901

Thomas, S.—

It bas long been tbe practice of tbis court to permit contestants in proceedings to admit wills to probate to withdraw tbeir objections, not withstanding tbe protests of tbeir attorneys claiming liens for services. An unreported memorandum of Ransom, S., states tbe rule and places it upon tbe ground that, in probate cases, tbe surrogate has special powers and duties imposed upon him by tbe statute, which vest in him tbe control, to a great extent, of tbe proceedings, irrespective of tbe wishes of tbe parties or tbeir attorneys, and that tbe rights and interests of other parties require that a contest should not be continued to be prosecuted for the mere purpose of determining a controversy between one of tbe parties in interest and bis attorney. Matter of Peter Wittner, Surr. Decs., 1890, 464. I am not disposed to overrule tbis decision, and, independent of it, I greatly doubt that tbe filing of objections to tbe probate of a will can be treated as tbe assertion of an affirmative cause of1 action or as an. answer containing a counterclaim sucb as to require tbe establishment of a lien by tbe attorney under section 66 of tbe Oode of Civil Procedure. However this may be, tbe agreement in writing made by tbe attorney, Mr. Keane, witb bis clients, wbicb constituted bis authority to appear and contest in their behalf, expressly provided that tbe parties of the second part, tbe clients, “ shall be at liberty at any stage of tbe case, either before, during or after suit commenced, to settle or compromise upon sucb terms as they may desire as to their respective interests.” This reservation, so explicitly made and assented to, must control, and tbe remedy of tbe attorney, wbicb must be against tbe results of tbe compromise, must be sought in some other tribunal. These considerations require tbe granting of tbe application to strike out tbe objections and to vacate tbe order for tbe examination of tbe non-resident witness to tbe will, made upon tbe footing of tbe objections. There being now no one before tbe court entitled to resist probate of tbe will offered, tbe application to permit tbe witness who testified before tbe commissioner in Paris to sign bis deposition before tbe probate clerk must also be granted.

Decreed accordingly.