In re Ellis — 22 N.Y. St. Rep. 77

Majority

p. 77

Matter of Anthony Ellis.

(Surrogate’s Court, New York County,

Filed January, 2, 1889.)

Headnote

1. Will—Validity of—Proceedings for revocation of pbobate—When PARTIES DULY CITED BY PUBLICATION—CODE OlV. PRO,, § 2518.

The children of a deceased brother of the testator, are included in the description in the citation of heirs and next of kin of deceased, whose names and places of residence are unknown, and were therefore duly cited

p. 78

by publication under § 2518 of the Code, and are precluded by the order made probating the will, from raising any question as to the validity of the provisions of the will or their construction, but not as to the sufficiency of the execution of the will.

2. Same—What mat be detebmined in the PBOCEEDnra—Code Civ. Pbo., §§ 2647-265.3.

Sections 2647 and 2653 of the Code, which under the circumstances, they mention, authorized the revocation of probate of a will of personal property, do not afford any warrant for determining, in the proceedings to which they relate, the validity, construction or effect of any disposition of' property made by a will.

Clifford Boese, for petitioner; Daniel Daly, for executor;. Foster & Thompson, for resp’t, Margaret McDermot; Bergen & Dykman, for legatee; Richard O' Gorman, Jr., for House for Aged of New York; Robert J. Mahan, for resp’t, John Ellis: John J. Gleason, for Sisters of St. Joseph’s.

—Assuming that the petitioners stand in the-relation to the testator which they claim, and have a right, to invoke the intervention of the court, they can, in the view I take of the matter, be entitled to only such relief as might be obtained in a proceeding for revocation of probate brought under article 2, tit. 3, chap. 18 of the Code of Civil Procedure. , From the papers submitted by the petitioners, taken? in connection with those filed in the proceeding in which the will was probated, it appears that the brother of the testator, whose children are the present applicants, died previously to the death of the testator. They were, therefore, proper parties to the proceeding for the probate of the will and as such, were duly cited by publication under the general designation of heirs and next of kin of deceased, whose names and places of residence were unknown. The order for publication was based on a petition alleging the existence of such heirs and next of kin and setting forth in accordance-with the requirements of section 2518 of the Code,, the fact, that after diligent inquiry, their names, as well as their residences, could not be ascertained by petitioner. The-court having been satisfied with the sufficiency of the petition for the purpose, granted the order. The petitioners were, therefore, regularly cited on the probate proceeding, as were also the two respondents who file answers attacking the validity of certain of the dispositions of the will. The petitioners are of course, at liberty to avail themselves, herein of the allegations in the petition as to the sufficiency? of the execution of the will. Any question, however,, affecting the validity of the provisions of the will, or their construction, they are, in view of what I consider to be the proper nature and scope of this proceeding, precluded from raising now. In the proceeding for the probate of the will was the proper place to present such question. Sections 26ÍT

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and 2653 of the Code, which under the circumstances they mention, authorize the revocation of the probate of a will of personal estate, do not, nor does the title of which they form part, afford any warrant for determining in the proceedings to which they relate, the validity, construction or effect of any disposition of property made by a will. See note to section 2647, Throop’s Ed. Code of Civil Procedure. The cases which have been cited by the applicants, lend no support to the contrary view.