In re the Estate of Bowne — 19 N.Y. St. Rep. 895

Majority

p. 895

In the Matter of the Estate of Elias C. Bowne, Deceased.

(Surrogate’s Court, Westchester County,

Filed April, 1888.)

Headnote

1. Judgment—Decree of surrogate admitting will to probate a judgment under Code Civ. Pro., § 721.

Under Code Civil Procedure, section 721, which is made applicable to the surrogate’s court by section 2538, a decree on probate must be regarded as a judgment within the spirit and meaning of said section.

2. Practice—Surrogate’s court—Effect of failure to appoint guar-

dian OF MINOR IN PROBATE PROCEEDING.

The failure to appoint a special guardian for minors on the return of the citation issued in proceedings taken to admit a will to probate does not render the proceedings void, but voidable only by the minor on attaining his majority.

3. Same—Right of general guardian to appear and appoint attorney-

The parent of an infant, as guardian in socage by nature or otherwise, has no authority to appear for it in a special proceeding taken in the surrogate’s court to prove a will unless he was then their general guardian.

4. Same—Order appointing guardian ad litem cannot be made nunc pro tunc.

An order appointing a guardian ad litem of an infant contestant in special proceedings to prove a will cannot be entered num pro tune, years after a will was admitted to probate. The right of an infant to avoid the decree because of the omission 'to appoint such special guardian cannot be taken away from her by such an order.

Elias C. Bowne died, leaving among his heirs-at-law certain infant children which were duly cited in the proceedings taken to prove his will in May, 1881. On the return of the citation the mother, who was guardian in socage of said children, personally appeared, also by her attorney, and contested the will. This attorney claimed on

p. 896

said probate to appear for the infant, and also for their general guardian, but the mother was not appointed such general guardian at that time nor for some time after the admission of the contested will to probate. The cases referred to in the opinion as being cited were Matter of Becker ( 28 Hun, 208 ), and Jenkins v. Young (5 N. Y. State Rep., 476).

Odle Close, for the application.

The question presented, is not one addressed to the discretion of the court, but relates to its jurisdiction to grant the order sought. It will be seen, by reference to § 2538 of the Code, that §§ 721, etc., are made applicable to surrogates’ courts, so that the power granted by those sections may be exercised here, but only when the case is brought within their provisions. Doubtless, it was irregular to proceed to prove the will and admit it to probate without having,-on the return day of the citation, appointed a special guardian for the minors. The mother, as guardian in socage, by nature, or otherwise, could not, except as general guardian, appear for them; and she was not then their general guardian: nor could the attorney appear for them. It is true, the failure to appoint a special guardian did not render the proceeding void, but voidable only by the minors on attaining their majority ; as is abundantly shown by the cases in Hun, cited by the learned counsel. I cannot see that they affect the question here presented.

It is expressly provided by subd. 7 of § 721, that no judgment of a court of record shall be impaired or affected by reason of the appearance, by attorney, of an infant party, if the judgment is in his favor. A decree on probate must be treated as a judgment, within the spirit and meaning of the act. Hence it would appear that, as the decree was against the infants as contestants of the will, it certainly cannot be regarded as being in their favor ; and therefore, to make the order sought would be violating the provisions of the act. Without the statutory power conferred thereby, this court, not being a court of general jurisdiction, would be able to correct but few of the defects and imperfections therein mentioned.

This minor, for it is understood that all but one of them are now over twenty-one, will have a right, when of age, to seek to avoid the decree because of the omission to appoint .a special guardian. It is an existing right, but cannot yet be exercised. Can this court deprive her of that right, by making the order sought? Clearly not. No provision of the common-law or of the Code can be found, warranting us to proceed to such an extent.

Application denied.