In re Gillies' Will — 7 N.Y.S. 909

Majority

p. 909

In re Gillies’ Will.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Wills—Probate and Contest—Vacating Decree.

A decree admitting a will to probate on default of contestant will not be vacated-: on contestant’s application, where there is no allegation of testamentary incapacity of decedent, and the ground of contest is simply that the widow and children were-insufficiently provided for by the will.

Appeal from surrogate’s court, Bockland county.

Sarali E. Gillies and others moved to open a decree admitting the will of John W. Gillies, deceased, to probate. The decree was entered on default of applicants, who were contestants. The motion was denied, and the applicants appeal.

Argued before Barnard, P. J., and Pratt, J.

B. T. Lovatt, for appellants. Irving Brown, for respondents.

The proceedings by proponents were regular. The citation to prove the will was returnable October 31,1888. The hearing was adjourned from time to time until the 5th of January, 1889, when, no one appearing to oppose, the will was admitted to probate. The witnesses to the-will had been examined, in the presence of the contestants, at one of the previous hearings, and on this day the investigation was closed by proof on the-part of proponents as to the custody of the will. The fifth of January hearing was agreed to by the proponents, and by the attorney representing the contestant, for the purpose of procuring an adjournment. The regular attorney for' contestants says he told his representative to adjourn the case to 9th July, 1889. The contestants’ attorney’s representative says he at once sent a letter to his principal, stating the real day fixed by the court. As against the respondents, the appellants’ case rests upon the receipt by the appellants’ attorney of this notice. The question of opening the default is not to be determined by the power of the court to open the probate, but by some injury to appellant which will result by letting the decree stand, No such injury is-claimed. The contest on the probate seems to rest upon an allegation that the widow and children are insufficiently provided for by the will. There is no-allegation that testator was incompetent, or was defrauded, or forced to make the will. The surrogate, who had heard the witnesses to the. will, was likely to know what real cause for contest there was; and, in the absence of any proof or allegation in the affidavits of lack of testamentary power in deceased,, the order should stand. Order affirmed, with costs. All concur.