175 Misc. 180 | N.Y. Sur. Ct. | 1940
This is an application by the widow of a deceased son of this testatrix for leave to intervene in this probate proceed
Petitioner contends that by virtue of section 47-c of the Decedent Estate Law, she is a necessary party to the probate proceeding and is thus entitled to file objections and contest the validity of the will of this testatrix. When the application came on to be heard for the first time, the court was inclined to believe that there was some merit to this contention. Upon a more careful consideration of the applicable statutes and authorities, however, I am satisfied that the application should be denied.
The right to contest the validity of a will is confined to those persons who would profit by its rejection. (Matter of O’Keefe, 135 Misc. 394, 395.) The true test here is who would take in the event of intestacy. The status of such persons must be determined in accordance with section 83 of the Decedent Estate Law, as amended and in effect at the time of the death of this testatrix. Subdivision 5 of section 83 provides as follows:
“ 5. If there be no surviving spouse, the whole thereof shall descend and be distributed equally to and among the children, and such as legally represent them.”
The phrase “ legally represent ” when applied to those persons who would represent deceased children as contained in subdivisions 1, 2 and 4 of the former section 98 of the Decedent Estate Law, has been construed to mean “ lineal representatives of the children.” (Greenwood v. Holbrook, 111 N. Y. 465, 471; Matter of Ackerman, 137 Misc. 910, 916.) Section 47-c of the Decedent Estate Law provides: “ * * * the terms ‘ heirs,’ ‘ heirs at law,’ 1 next of kin ’ and ‘ distributees ’ and any terms of like import shall be deemed and shall be construed to mean the distributees, including a surviving spouse, who are defined in section eighty-three of Decedent Estate Law.” It thus appears that by the very language of this statutory provision, one is referred to the Statute of Distribution as contained in section 83 of the Decedent Estate Law. Section 47-c of the Decedent Estate Law makes no reference to such terms as “ such as legally represent them or legal representatives.” While lineal descendants and statutory distributees may be the same people, the right, under subdivision 5 of section 83, is acquired only because of representation. It is acquired not because a person is a distributee or heir at law of a deceased person
For the reasons stated, petitioner’s application to intervene is denied, and her objections to the will of this testatrix dismissed.
Settle order accordingly.