1 Redf. 473 | N.Y. Sur. Ct. | 1863
The Surrogate. — The petitioner in this matter prays for the admission of the will to probate and for the issuance of letters testamentary, and sets forth the names of a number of persons whom he alleges to be the only heirs at law and next of kin of the deceased, averring that the deceased was never married. As is the practice in this court, citation was accordingly issued to the persons so named; and on the return-day objections were filed on behalf of certain infants, claiming to be legitimate grandchildren of the deceased, who deny the legal execution of the paper propounded as a will, and claim to contest its probate.
The proponents now insist that the question of the interest of these infant objectors must be first tried and decided; and that in case of a decision favorable to the objectors, on that issue, they must then be brought before the court, like the other next of kin (by a further citation), before they can be considered as on the status of contestants. In other words, they contend that the issue of interest and the issue of due execution must constitute two separate and distinct proceedings.
The practice in this court has not been thus strict. On the
“ When a person appears before the surrogate to oppose-the probate of a will, he is bound, if the adverse party disputes his interest, to show his interest, as his right to contest the will.” (Dayton on Surrogates, 159.) And it is further held, that “if issue be taken on the allegation of interest, the evidence in relation to that question, and that which relates to the proof of the will, should • proceed pari passu.” And the proceeding is a single one, and is so conducted here.