1 Dem. Sur. 387 | N.Y. Sur. Ct. | 1883
The learned counsel for the petition
By § 2647 of the Code, “a person interested in the estate of the decedent ” may, within the time specified in the next section, which is within a year after the recording of the decree admitting the will to probate, present to the Surrogate’s court, in which a will of personal property was proved, a duly verified written petition,, containing allegations against the validity of the will, etc., and praying that the persons in interest may be cited to show cause why it should not be revoked. “Upon the presentation of such a petition, the Surrogate must issue a citation accordingly.” The petitions in this matter wrere filed Nov. 6th, 1882, but the citation was not issued until Feb. 21st, 1883, nor served on any person to whom it was directed until two days after-wards, which was about one hundred days after the filing of the petitions. The counsel-for the executor insist that this delay is fatal to the proceeding. I think this view is correct. By § 2517, the presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of the act which limits the time for the commencement thereof. “But, in order to entitle the petitioner to the benefit of this section, a citation, issued upon the presentation of the petition, must, within sixty days thereafter, be served ” upon
It is insisted, however, by counsel" for the petitioners, that this court has power, under subd. 6 of § 2481, under the prayer in the petitions for general relief, to set aside the probate, and to try the question of the validity of the will. It ought to be sufficient to say that the petitions are not framed with any regard to invoking action under that section... No reason is alleged why the decree
Again, it is urged, by counsel for the petitioners, that § 424 of the Code, which is made applicable to Surrogates’ courts, obviates the objection that the citation was not issued in time. It provides that “a voluntary general appearance of the defendant is equivalent to personal service upon him.” Granting this, I caunot perceive its application to this case. The objection is not that there was no personal service, for there was, but that it was not made within the time prescribed by law. I have, however, looked through the papers, and fail to find any such paper as indicates ‘‘a voluntary general appearance” of any of the parties cited. The nearest approach to it exists in stipulations to adjourn the hearing from time to time. At the very first hearing before me, the objections herein considered were raised, and, I think, the right to raise them has, in no way, been lost.
Having thus concluded to dismiss the proceeding upon the ground taken, I do not deem it necessary to consider the objection raised as to lack of interest, which the moving parties have in the premises.
The estate is said to amount to several millions of dollars in value, and, as it must be assumed that the petitioners have acted in good faith, it is to be regretted that
Ordered accordingly.