5 Redf. 326 | N.Y. Sur. Ct. | 1881
The probate proceedings having been commenced by the service of the citation therein on all the necessary parties in 1872, the Code has no application to them (§ 8847, subd. 11; § 3348).
The petitioner’s,intestate was not a party to the proceedings and the question suggests itself whether the petitioner can make himself a party to them and ask that they be continued. Under the act of 1837, in force .before the Code, an executor, devisee or legatee named in any last will, or any person interested in the estate, might have such will proved (L. 1837, ch. 460, § 4). The petitioner in this case is neither an executor, devisee nor a legatee named in the will of Bernard Gillan, but he may be said to be a person interested in his estate. He is the legal owner of a mortgage on real estate which passes under Gillan’s will, and as such has an interest in having said will proved. True, this mortgage has been executed since Gillan’s death, by his devisee, but that is immaterial ; the object of the statute is to give the right to have the will proved to every person who is interested in having that done, by reason of his interest in the property which is the subject of the will, and that object would be frustrated in many instances, if the right given by the statute were limited to those having an interest in the property at the time of the death of the testator.
Take this very case: there is no one but the petitioner and the persons interested in the estate of his
As a person who may have the will proved under the statute before cited, the petitioner clearly has the right to ask to be allowed to intervene and become a party to the proceeding for the probate of the will, for the purpose of protecting his own interests (Booth v. Kitchen, 7 Hun, 255, 259, 260, 264; Walsh t. Ryan, 1 Bradf., 433; Marvin v. Marvin, 11 Abb. N. S., 97 ; Children’s Aid Society v. Loveridge, 70 N. Y., 387, 391; Turhune v. Brookfield, 1 Redf., 220).
Section 2617 of the Code expressly gives that right to any person interested in sustaining or defeating the will, and I do not understand it as laying down a new rule, but only as formulating in this respect the law, as it existed before the Code went into effect.
But, as was held in Foster v. Tyler (7 Paige, 48, 52), the petitioner must first become a party to the proceedings, before he can make any motion or take any steps therein. To that end, he must amend the prayer of his petition, and ask to be allowed to intervene and become a party to the proceedings to prove the will of Bernard Grillan, and upon the petition so amended, an order will be made accordingly.
As I have said before, it does not appear whether the executor Anthony Grillan is dead or alive, but all the other parties to the proceedings are dead, and the next question therefore which presents itself is whether the proceedings for the probate of Bernard Grillan’s will have abated or can be revived and continued. The authorities hold that they do not abate, but that they may be revived and continued by bringing in the persons who
Ordered accordingly.