194 Misc. 815 | N.Y. Sur. Ct. | 1949
The motion of proponents insofar as it seeks to vacate the appointment of the respondent as special guardian for unknown distributees of the decedent, or, in the alternative to strike out his objections is denied in both respects.
The court, having been satisfied on the affidavits of kinship as presented that they were insufficient to eliminate the possible existence of relatives of equal or nearer degree than those mentioned in the petition for probate, made an order directing service of citation by publication against the unknown distributees of decedent, and, upon the return date of the citation, in the exercise of his discretion, and pursuant to the provisions of section 64 of the Surrogate’s Court Act, appointed the respondent as special guardian of all unknown distributees and as attorney for such of them as may be in the military service of the United States.
Proponents have failed to satisfy the court on this motion that its discretion in protecting the interests of any unknown distributees was not properly exercised. The facts presented today are no different from those submitted at the time of designation. The following language in Matter of Schultz (180
In the protection of the interests of any and all unknown persons who may be distributees of the decedent, the respondent was in duty bound “ to protect and advance those rights by every honorable means and expedient which is known and available to him, under penalty, if he proves derelict in the performance of his duties, that he may subsequently be compelled to respond in damages to his wards for his failure adequately to protect the rights which they possessed ” (Matter of Schrier, 157 Misc. 310, 312). In accordance with the responsibilities ensuing from his appointment, the respondent saw fit to file objections to probate for and in behalf of all unknown distributees pursuant to the provisions of section 147 of the Surrogate’s Court Act, which provides in part, that: “ Any person * * * interested as heir-at-law, next of kin, or otherwise, in any property, any portion of which is disposed of or affected, or any portion of which is attempted to be disposed of or affected, by a will or codicil offered for probate * * * may file objections to any will or codicil so offered for probate.” While it is true that the statute makes no specific provision for the filing of objections by a special guardian of known or unknown distributees, it must be read with the provisions of section 64 of the act, whereunder it is mandatory for the court under certain prescribed conditions to appoint a special guardian for known persons, and permissive, in the exercise of its discretion, to appoint one for “ unknown persons, or persons whose whereabouts are unknown ”, These sections taken together render it inescapable that the respondent was entitled under said section 147 to file objections in behalf of his unknowns. To hold otherwise would render the provisions of section 64 nugatory, meaningless and ineffective. The objections, as amended, will not, therefore, be stricken out.
The further alternative relief for an order directing the respondent to furnish particulars in respect to the four numbered items and subdivisions thereof as set forth in the notice of motion is granted. Items la, lb, 2a and 2b are allowable under rule XXIII of the rules of this court. Items 3a, 3b, 3c
The bill of particulars is to be served and filed within ten days after the completion of both the oral examination of the subscribing witnesses under section 141 of the Surrogate’s Court Act and the examination of the proponents under section 288 of the Civil Practice Act.
Submit order, on notice, accordingly.