Lasak's Will — 23 Abb. N. Cas. 54

Majority

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LASAK’S WILL.

Westchester Surrogate's Court ;

April, 1889.

Headnote

Wills; probate; executor's withdrawal.] After an executor has-offered a will for probate and conducted the proceeding to the extent of examining the subscribing witnesses, he cannot discontinue or withdraw the proceeding upon his own motion.

Motion to dismiss probate proceeding.

John G-. Wendei, named as executor of the last will and: testament of Francis W. Lasak, deceased, duly filed the usual petition with a view to the probate thereof. A citation was issued accordingly, and was, on March 15, 1889,. returned with due proof of the service thereof on all parties in interest. Some of the parties so cited appeared in support of the will, while others were present in opposition. The counsel for the executor produced and examined the-subscribing witnesses, who were cross-examined by the contestants. The matter was then adjourned to April 12, by-consent. On that day the counsel for the executor read a-notice which he had caused to be served on the attorneys-for the respective parties, to the effect that the executor-declined to take any further part in the controversy, leaving it to the parties interested in the estate, and asked leave to-withdraw therefrom. Subsequently, he moved to dismiss-the whole proceeding.

S. B. Brownell, for the executor.

George G. Reynolds, for Victoria A. McKenzie, an heir and next of kin, in support of the will.

Mr. Johnson, for Ophelia J. Cuthbert, an heir, etc., and. legatee on the same side.

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Mr. Cardozo, for Cordelia D. Chauvet, an heir, etc., and legatee, contesting will.

Aaron Kahn and Robert Sewail, for Antionette L. Schermerhorn, an heir, etc., contestant.

Chas. F. Maclean, for Margaret S. Ives, an heir, etc., contestant.

It is provided by section 2614 of the Code of Civil Procedure, that an executor, devisee, legatee or any other person interested in the estate of an alleged testator, may present a petition to the surrogate, with a view to its probate. The next section provides for the citing of husband, wife, heirs at law and next of kin, but not the executor. Hence, if any person other than an executor applies for probate, the executor need not be cited or made a party to the proceeding, So too, all the parties in interest, without the executor, may appear before the surrogate and ask for immediate probate, which will ordinarily be granted. The executor, as such, is not, therefore, a necessary party to the proceeding. He is simply permitted to make himself such party by petitioning for a citation to be served on the proper persons. After all the parties have been cited and some of them appear, a part of whom are desirous that the will should be sustained, and others that it should be rejected, and they enter upon a contest in regard to it, the executor, if he so elect, may sit by as an idle spectator of the controversy, or absent himself, at his option. There is no power possessed by the court to compel him to take an active part, and no order permitting him to withdraw is necessary. He has no beneficial interest under the will, and if he even declines to examine the subscribing witnesses, the surrogate, in the discharge of his duty, would be compelled to'do it. For he “ must cause the witnesses to be examined before him” (Code, § 2618), and any court may propound questions to witnesses. Indeed, surrogates in

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former times, personally examined witnesses, and where there is no contest, they constantly and habitually do so now.

Where, however, the parties appear on the return day of a citation in a probate case, it seems to me that the executor has no power to discontinue or withdraw the proceeding without the consent of all. He is the mere instrument by which they are brought into court in order that they may assert their rights and contend for what they may deem to be their interests. He, by the facts stated in his petition, has conferred jurisdiction of the subject matter, and, by proof of proper service of the citation, of the persons, upon the surrogate, and he cannot divest it of such jurisdiction by any act of his, more especially after appearing in court and duly examining the subscribing witnesses to the alleged will.

The motion is denied.