195 Misc. 446 | N.Y. Sur. Ct. | 1949
This proceeding was instituted to admit to probate an alleged will of deceased, claimed to be lost or to have been fraudulently destroyed while in the care and custody of another person. The proponent is named as a legatee in the propounded paper.
Deceased died on April 29, 1946, and letters of administration were granted on May 22,1946. In December, 1947, the administrator filed his account and petitioned for its judicial settlement. The accounting proceeding is pending. The instant probate proceeding was begun early in the year 1948, and was noticed for trial for January, 1949, and after adjournment ultimately came on for trial some time later. At the trial, and before the tender
A discontinuance will ordinarily be denied if the termination of the litigation would prejudice the substantial rights of other parties (Carleton v. Darcy, 75 N. Y. 375; Winans v. Winans, 124 N. Y. 140; Frear v. Lewis, 201 App. Div. 660). In this case, the administrator has asked to have his account of proceedings judicially settled and he is prepared to distribute the assets of the estate to the persons ascertained to be the distributees. Although such an intestate distribution would substantially prejudice the rights of persons who might be entitled to deceased’s property under a valid will if it existed, the discontinuance of the proceeding to probate the will would equally prejudice the distributees, who here assert a positive right to receive distribution upon the theory that no valid will exists. The distributees as well as the beneficiaries under the alleged will are therefore entitled to an adjudication as to the validity of the propounded paper. Equity required that the validity of that instrument be determined, so that a distribution of the deceased’s property could be decreed.
The evidence taken following the denial of proponent’s motion wholly failed to establish that the instrument was in existence at
Submit, on notice, decree accordingly.