In re Hunt's Will — 105 N.Y.S. 59

Majority

p. 59

(120 App. Div. 883)

In re HUNT’S WILL.

(Supreme Court,. Appellate Division, Second Department.

June 7, 1907.)

Headnote

Wills—Appeal from Surrogate’s Court—Bringing in Parties.

Under Code Civ. Proc. § 2573, providing that each party to a special proceeding in the Surrogate’s Court, and each person not a party, who has or claims to have in the subject-matter of the decree an interest which is directly affected thereby, and which appears on the face of the papers presented or by the proceedings taken in the Surrogate’s Court, must be made a party to the appeal, and that such a person not a party, may be brought in by order of the appellate court, it appearing that there are parties and persons interested other than those against whom appeal from the refusal of probate of a will is taken, appeal will be held to allow op the bringing in of such parties and persons by an order of the appellate court.

Appeal from Decree of Surrogate, Orange County. ,

In the matter of proving the will of Hester Hunt, deceased. Prom a decree refusing probate, Jesse B. Mabee appeals.

Appeal order held.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILDER, JJ.

J. Bradley Scott, for appellant.

John J. Beattie, for respondents.

This is an appeal by the executor and proponent of a will from the decree of the surrogate refusing probate. The only persons against whom the appeal is taken are the infants represented by the special guardian. As there are other parties and persons who, within the purview of section 2573 of the Code of Civil Procedure, must be made parties to the appeal, they should be brought in by order of this court (Id.). When this is done, this court, having held the appeal meanwhile, will consider the merits thereof.