116 Misc. 516 | N.Y. Sur. Ct. | 1921
This is an application by petition of Edward P. Starek, an executor designated in the propounded will which is being contested, for the approval by the court of a proposed compromise agreement between the parties, prior to the probate of the will, and for an order authorizing a special guardian for infants, incompetents, persons unknown, or not in being, pursuant to section 24 of the Personal Property Law, being chapter 419 of the Laws of 1919, and section 73 of the Real Property Law, being chapter 441 of the Laws of 1919.
Such a proceeding is an innovation in the law and considerable doubt exists in the mind of attorneys as to the proper practice to be pursued to secure a binding order of the court. Dispute has arisen among counsel as to the necessity of the issuance of a cita
The language of the sections in part is as follows : “An application for the approval of a compromise pursuant to this section must be made by petition duly verified, which shall set forth the provisions of any instruments or documents by virtue of which any claim is- made to the property or estate and any and all facts relating to the claims of the various parties to the controversy and the possible contingent interests of persons not in being and all facts which make it proper and necessary that the proposed compromise be approved by the court. After taking proof of the facts either before the court or by a referee and hearing the parties and fully examining into the matter the court must make an order upon the application.”
All necessary parties had notice of the probate proceeding through the issuance of a citation and service thereof, and because of such a proceeding, a contest arose regarding the will. The settlement of a pending will contest and the payment of a substantial sum of money from the corpus of the estate is quite a different matter from the probate of the will. The petition upon the probate of the will, of course, did not allude to, nor give notice to any of the parties
The new law of 1919 relating to compromise of controversies is silent as to the process to be employed. It speaks only of an application by petition duly verified. As to procedure it provides that the court shall take proof of the facts and shall make an order. It is my opinion that the proceeding must be prosecuted according to the law and practice of the court in which it is instituted.
Section 2511 of the Code of Civil Procedure having reference to jurisdiction of persons, speaks of a proceeding. A proceeding can only be commenced in this court by the filing of a petition duly verified. Code Civ. Pro. § 2518. When the petition reciting jurisdictional facts was filed in the application for the probate of the will, the court acquired jurisdiction of the rem, which once acquired is never lost. In the instant matter, the court is concerned with whether or not it has acquired jurisdiction of the person in a proceeding commenced by a petition which sets forth the facts which relate to the subject matter therein stated. Jurisdiction of the person in any proceeding can only be acquired in the following manner, to wit: by being duly cited, personal appearance, waiver, or by attorney who has been duly authorized to appear. Code Civ. Pro. § 2511. The word “ cited ” as used in this section must be taken in its broad and general sense to mean “ to summon," to command the presence of a person; to notify a person of legal proceedings against him and require his appearance thereto.” Bouvier Law Diet. Thus, if a person is to be cited, “ it must be by the process of the court.” The process of the court is a citation to show cause, or an order to show cause. Code Civ. Pro. § 2522. A
The new law is loosely drawn so far as procedure is concerned, but I think the legislature intended in the light of the Code sections that an entire independent proceeding founded upon a petition should be instituted by citation or order to show cause to all necessary parties, and result in an appealable order. The provisions of the new law indicate a special proceeding and are not consistent with a motion in a proceeding already pending. The infants and the unknown and unborn cannot consent, nor waive, nor personally appear, nor authorize an appearance by an attorney. Therefore, they must be brought within the jurisdiction of the court by its process according to the practice of the court.
The new law of 1919 relating to compromise of will controversies states that an application of this character should be presented to the court by petition. Section 2521 of the Code states the general jurisdictional contents of a petition. Section 2511 of the Code states that, in any proceeding, the court shall have jurisdiction of those duly cited and those who waive, appear personally or by attorney. Section 2518 of the Code says that each proceeding shall be commenced by the filing of a petition. Section 2522 of the Code says process of the Surrogate’s Court shall be a citation to show cause, an order to show cause, and such other process and mandate as the surrogate is or shall
As the court is permitted under section 2522 of the Code of Civil Procedure to select as its mandate either a citation to show cause, or an order to show cause upon the filing of a petition, I shall hold that the process in the instant proceeding should be a citation to show cause. In my opinion the order permitting compromise is a final order in a special proceeding. The order to be made on petition is entirely independent of any other proceeding. In this proceeding the parties have rights other than in the proceeding to probate the will and a final order in the instant proceeding is appealable. Matter of Hardy, 216 N. Y. 132. Thus we have a definite and orderly procedure — a procedure where the order either permits or denies the relief asked for in the petition.
This application can only be permitted if all the adults have consented in writing. This consent having been filed with the petition, jurisdiction of the infants, or persons unknown, or not in being must be obtained. The purpose of this proceeding is to bind the infants, the incompetents, and the unborn. Upon the return of a citation duly served, a special guardian must be appointed by the court. If it appears to the satisfaction of the court that the interests of persons unknown, or the future contingent interests of persons not in being are or may be affected by the compromise, the court should-take proof of the facts either before
As the proceeding in the instant case conforms to the practice stated herein by the court as it interprets the law, the special guardian appointed herein, upon his report, and after taking proof of the facts and fully examining into the matter, may be authorized to enter into such compromise agreement as submitted herein. Upon the presentation of such agreement signed by the special guardian and by the adults, the court will make an order upon the application.
Decreed accordingly.