In re the Estate of Gillender — 98 Misc. 509

Majority

p. 509

Matter of the Estate of Jessie Gillender, Deceased.

(Surrogate’s Court, New York County,

January, 1917.)

Headnote

Security for costs — when contestants may be required to give — costs — who are nonresidents — executors and administrators.

Upon an application that contestants file security for costs, an issue raised by allegations that many of them are not next of kin of testatrix and, therefore, not entitled to file objections, cannot be determined.

Where contestants, second cousins of testatrix, are nonresidents, and even if successful their interest in the estate is small, they should be required to give security for costs.

Application to give security for costs in a proceeding upon the probate of; a will. ; ,

Charles A. Runk, for proponents.

Charles O’Sullivan, for contestants.

This is an application by the proponent of a script purporting to be the last will of the testatrix .for an order directing certain persons who filed objections to the probate of the script to give security for. .costs. , While, the. .petitioner, ^.lieges, that, many of

p. 510

the contestants are not next of kin of the testatrix, and are not therefore entitled to file objections to the probate of the script, that issue cannot be determined .in this proceeding, as the application is not made to determine the right of the contestants to file objections, but to compel them to give security for any costs that may be awarded against them in the probate proceeding.

The testatrix was survived by nine first cousins; these are her nearest relatives. She was also survived by about twenty second cousins, and it is these who have filed objections to the probate of her will. The only part of her estate in which they would participate in the event of the script being denied probate is a small parcel of real estate which was purchased for $1,250, and the value of their interest in that would not amount to more than a few hundred dollars. As these contestants are nonresidents and their interest, even in the event of their being successful, is so small, I am of the opinion that they should give security for costs. I will therefore direct that the nonresidents mentioned and described in the notice of motion herein give security for costs in the sum of $1,000, and that all proceedings on their- behalf be stayed until such security is given and duly approved.

Decreed accordingly.