281 A.D. 841 | N.Y. App. Div. | 1953
In a proceeding for the probate of a will, which gives the entire residuary estate to the surviving husband, it appears that the only blood relatives surviving are two grandnieces of the testatrix, who are grandchildren of two of her predeceased sisters. The order of the Surrogate’s Court, Kings County, directs that the probate proceeding be stayed until the grandnieces are cited therein or have waived citation. Order reversed on the law, without costs, and the matter remitted for consideration on the merits and the entry of decree. The grandnieces are neither necessary nor proper parties to the probate of this will. (Surrogate’s Ct. Act, §§ 140, 147; Decedent Estate Law, | 83, subd. 4.) Although under sections 140 and 147 of the Surrogate’s Court Act the Surrogate possesses the power to join any person as a proper party if it be shown that there is a fair or even a slight possibility that such person has a pecuniary interest which would be advanced by the denial of probate (Matter of Davis, 182 N. Y..468, 472; Matter of Cook, 244 N. Y. 63, 68, 72; Matter of Mackenzie, 247 App. Div. 317, 319-320; Matter of Carll, 201 Mise. 829, 833; Matter of Bahrenburg, 200 Mise. 959, 961; Matter of Bose, 185 Mise. 33, 38; Matter of Bose, 185 Mise. 39, affd. 269 App. Div. 933; Matter of Zimmerman, 104 Mise. 516, 538-539), nevertheless, in the record presented, there is a complete absence of such a showing. Indeed, the affidavit of one of the grandnieces, in support of probate, gives affirmative indication that neither grandniece has any pecuniary interest which would be aided by the rejection of the will. Under such circumstances it was error, either as matter of law or discretion and whether under section 140 or section 147 of the Surrogate’s Court Act, to direct that the grandnieces be joined as parties to this probate proceeding. (Cf. Matter of Ballmamt, 198 Mise. 916, 918; Matter of
