Patterson v. Hamilton

Headnote

Proceedings to sell real estate of decedent to pay debts — the heirs-at-law must be made parties to an appeal taken by a creditor— they cannot be made pa/rties after the . * time to appeal has expired.

Appeal from an order of the Surrogate’s Court of the county of Allegany, in proceedings for the sale of real estate of the respondents’ decedent, allowing the appellant’s claim of $502.98 at the sum of ninety-three dollars.

The court at General Term said: “ There is a defect in the appellant’s practice which is fatal to his case. He has omitted to make the heirs of the deceased, parties to the appeal. They were parties to the proceeding before the surrogate, and appeared there ana contested the appellant’s claim, and they are interested in the disposition to be made of the proceeds of the sale of the real estate. ' In their absence we cannot reverse the order appealed from, even though we should be of the opinion that the surrogate had erred

as to the rights of the parties. (Brown v. Moans, 34 Í>arb., 594.) Nor can we give relief by permitting the appellant to bring in the heirs, as the time within which to appeal from the order of the surrogate has expired, the order having been made and entered on the 2d day of October, 1879. (Cotes v. Carroll, 28 How. Pr., 436 ; 2 R. S., 610, §§ 104, 105.)

“ Nothing can be done, therefore, but to dismiss the appeal, with costs.”