93 N.Y.S. 836 | N.Y. App. Div. | 1905
The testator, Wallace 0. Andrews, died in a fire which destroyed his home and in which several other people perished, including his wife and her sister-in-law, Mrs. St. John. Mr. Andrews left a last will and testament which was duly admitted to probate, and while this proceeding for the judicial settlement of the executor’s accounts was pending, ¡Norman 0. Andrews, a brother of testator and one of the next of kin, made a motion for an order permitting him to appear in the proceeding and to file objections to the executor’s account. The applicant claims that Mr. Andrews died intestate as to a portion of his property,' and that he, as one of the decedent’s next of kin, is entitled to share in that portion of the estate. The moving papers set out the applicant’s ■position as follows : First, it is alleged that Mrs. St. John, above- referred to and who was a legatee, under the will, did not survive the testator; that her legacy, therefore, lapsed and Mr. Andrews died intestate as to the amount thereof which entitled the applicant to share therein. Second, that by his will Mr. Andrews bequeathed more than one-half of his entire estate to a charitable or benevolent institution, the Andrews Institute for Girls, to be thereafter organized ; that the testator had a wife who did not predecease him, and that so much of this bequest as exceeded one-half of his estate was invalid under chapter 360 of the Laws of 1860, and, therefore, the testator died intestate as to such excess. Third, that the charitable institution mentioned in the will was not incorporated until some time after Mr. Andrews’ death, and that he died intestate as to so much of the income from the legacy to it as accrued intermediate his death and its incorporation.
From these allegations and from the opposing affidavits it was shown that the right of the petitioner to .appear in the proceeding and to file objections to the account depended upon the determination of a disputed question as to the survivorship of three people who perished in a common disaster, and to aid him in determining that issue the surrogate sent the matter to a referee.
, -This appeal is taken by the applicant botli from the order appointing the referee and also from the order denying the motion to be permitted to-appear and file objections to the account..
In our "opinion the practice adopted by the learned surrogate Was improper under the~peculiar circumstances of this case. Section 2728 of the ©ode of Civil Procedure provides, amotig other things, in relation to the judicial settlement of an executor’s account, that “ a creditor,, or a person interested in the estate, although not cited; is entitled to appear on the hearing, and thus make himself a party to the proceeding.” And subdivision 11 of hectión 2514 of said Code recites that “ the expression, ‘ person interested,’ where it is used in Connection with an- estate or a fund, includes évery person entitled, ■ either absolutely or contingently, to share in the estate or. the" proceeds thereof, or in tlie fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except"as a creditor.”
The applicant had not been cited upon the accounting and .it is conceded that he is one of the next of kin and entitled to , share in
It is true that where an application of this kind is made, the surrogate, before granting the motion, may ordinarily examine into the question of whether the applicant is a party interested in the estate (Matter of Comins, 9 App. Div. 493), and if necessary, in order to aid him in determining that question, he may in a proper case send the issue to a referee. Therefore we do not hold that ordinarily the surrogate may not rightfully pursue the course here adopted, but we are of the Opinion that under the facts as here shown in these moving papers he should not have finally determined' the claim of the appellant as upon a motion. Whether the legacy to Mrs. St. John had lapsed, and whether a large part of the legacy to the Andrews Institute was void, depended, as already intimated, upon the survivorship of three persons who died in a conflagration. The questions presented concededly required for their determination a full and orderly hearing in the regular way and in a proceeding where all the parties interested could litigate their claims. Yet, so far as the applicant is concerned, his rights have been determined upon a motion, the reference being ordered simply to aid the surrogate in passing upon that motion. This procedure was not proper. Certainly the applicant had shown such a bona fide claim to a possible interest in the estate that he should not have been denied the right to appear on the accounting for the' purpose of protecting whatever interest he might have in the funds held by the executor. When a surrogate can see from the moving papers upon an applicar
It may also properly be noted that' the practice adopted by the surrogate possibly subjects the estate to extensive and protracted litigation. The. decision upon this application is not binding upon any of the other heirs or next of kin of the testator.' N otwithstand- -. (ing the denial of Norman C. Andrews’ motion, any and all of the other heirs or next of kin may make a similar application — as, indeed, two others have already done — and, if we should approve ©f the surrogate’s procedure, each subsequent application would require a new reference and the reexamination of the entire matter
For these reasons the order appealed from must be reversed, with costs, and the motion of the applicant granted, with costs to abide final award of costs.
Yan Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.
Order reversed, with costs, and motion granted, with costs to abide final award of costs.