Bijur v. Bijur — 9 N.Y. St. Rep. 46

Majority

p. 46

Isaac Bijur et al., Ex’rs, etc., App’lts; Paulina Bijur et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 13, 1887.)

Headnote

Practice—Will—Construction of—What must appear.

In an action to construe a will and codicil, it was neither alleged in the complaint nor found in the findings of the court that the codicil was-ever admitted to probate and the record contained no evidence of that fact, an infant being interested in the question to be adjudicated upon. Held, that proper proof must be before the court before any attempt at adjudication was made.

Appeal from judgment of the special term construing will of Asher Bijur deceased.

The record which is presented upon this appeal is in such a condition that it is impossible for the court to consider the will and codicil of the testator. It is neither alleged in the complaint nor found in the findings of the court that the codicil has ever been admitted to probate, and the record contains no evidence of that fact. There being an infant interested in the question to be adjudicated upon, proper proof should be before the court before any attempt at adjudication is made.

It is possible that the whole record may not have been presented; but as the court below made no finding upon this subject, it must be necessarily remitted back in order that proper proof be taken or if the proof has been taken a finding made in respect to the admission of the codicil to probate.

Ordered accordingly.