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In re the Estate of Work

151 A.D. 707 Court First Department, Decision date 1912-06-28 English

Delivered by *708 Miller, J.:

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p. 707
In the Matter of the Estate of Frank Work, Deceased. Carll S. Burr, Jr., Petitioner, Appellant; Peter Cooper and Others, Respondents.
First Department,
June 28, 1912.

Headnote

Wills — concealed will—proceeding to compel production—effect upon probate —procedure upon return oí citation.
A proceeding under section 2631a of the Code of Civil Procedure to compel the production of a concealed will or codicils is not an attack upon a decree of probate and may be instituted irrespective of whether there has been such a decree.
Upon the return of a citation issued under said section the surrogate may refuse to proceed further, unless the petitioner show some ground or reason for the suspicion that there are other codicils, and that if produced it will appear that he is entitled to an interest in the estate.
Appeal by the petitioner, Carll S. Burr, Jr., from an order of the Surrogate’s Court of the county of Hew York, entered in the office of the clerk of said court on the 9th day of May, 1912, dismissing a petition and all proceedings thereon instituted under section 2621a of the Code of Civil Procedure.
Daniel P. Hays, for the appellant.
Henry B. Closson, for the respondents.

The petition in this case stated on information and belief that on the 29th of April, 1911, a will of real and personal property, together with fifteen codicils thereto, was admitted to probate as and for the last will and testament of Frank Work, deceased; that there were several other codicils made subsequently to the last one admitted to probate, making a different disposition of the decedent’s property, which certain persons named and others “have fraudulently conspired to suppress and conceal and have so suppressed and concealed,” and that the petitioner is advised and verily believes that if said other codicils were produced he would be entitled to an interest in the estate of said decedent. Upon that petition a citation was issued, and upon the return of the citation the surrogate (see 76 Misc. Rep. 403 ) dismissed the proceeding on the ground that he had no power to entertain the proceedings so long as the probate decree stood.

' Section 2621a of the Code of Civil Procedure, so far as material, provides: “A person claiming.to be interested in the estate of a decedent may present a petition under oath to a Surrogate’s Court against any one or more persons suspected of destroying, retaining, concealing or conspiring with others to destroy, retain or conceal a will or testamentary instrument of the decedent, and the court thereupon must issue a citation, directed to such person or persons, ordering the production of the will or testamentary instrument or show cause why it should not be produced. On the return of the citation the court may order the suspected person or persons to appear before it and be examined on oath upon the matter of the petition.”

We think that the learned surrogate was justified in dismissing the proceedings, but not for the reason assigned by him. This proceeding is not an attack upon a probate decree, and we think it may be instituted irrespective of whether there has been such a decree. If a subsequent alleged will or codicil should be discovered, the probate decree would remain unaffected until a direct attack upon it should be made. The fact that such an attack might be made if the petitioner should attain his purpose in this proceeding constitutes no objection to the maintenance of it.

p. 709
However, it will be observed that the language of the statute is, “on the return of the citation the court may order the suspected person or persons,” etc. While the petition may have been sufficient to justify the issuance of a citation, the surrogate was not required to proceed further, upon objection being made, unless the petitioner showed some ground or reason for the suspicion that there were other codicils, and that, if they were produced, it would appear that he was entitled to an interest in the estate.

For that reason the order is affirmed, with costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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