In re the Probate of the Will of Rose

185 Misc. 39 | N.Y. Sur. Ct. | 1945

Delehantt, S.

The motion to dismiss the objections of the special guardian is in all respects denied. The reasons for such disposition are in part stated in the decision on a companion motion released simultaneously herewith (185 Misc. 33). In addition to such reasons the motion must fail because the basis to it appears to be an actuarial computation which was so difficult to state that it was erroneously stated (as the moving parties concede) in material respects and the resulting error depreciates the contention of the moving parties though they do not admit that the error destroys their contention. The court should not exclude any party merely because a mathematical computation on an actuarial basis might show him to be better served by the admission of the propounded paper. The interest of the litigant cannot be measured on an actuarial basis but must be computed on the basis most favorable to him with every contingency resolved in his favor. As was said by Surrogate Coffin in Matter of Greeley’s Will (15 Abb. Prac. [N. S.] 393, 395): “ Any interest, however slight, and even, it seems, the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper * *

But another and controlling reason requires denial of the motion. The wards of the special guardian will be prejudiced under the propounded paper as compared to the prior papers if any additional issue be born to their uncle. he possibility of such issue is always present and can never be denied so long as the uncle lives. That prospect of harm to the wards of the special guardian under the propounded paper by reason of this possible diminution of their interests entitles the special guardian to prosecute his objections.

Submit, on notice, order accordingly.