In re the Probate of the Paper Propounded as the Will of Chittenden

Majority

p. 135

The probate of the paper propounded as the Will of Lucius Chittenden.

Headnote

A person claiming as legatee under an alleged will of prior date which had been lost or destroyed, may be admitted to contest the paper propounded before the Surrogate, upon his commencing an action in the Supreme Court to establish there the destroyed will.

Stewart, Ritch and Woodford,/or proponents.

Sterne Chittenden, in person.

The widow1 of the decedent, who is the person named as executrix in this paper, propounds it for probate. The only heir-at-law and next of kin is Lucia Chittenden, an infant, for whom a special guardian appears. But Sterne Chittenden, a nephew of the decedent, files objections to the probate of the paper propounded, and claims to contest such probate. It appears that Sterne Chittenden claims as legatee under a testamentary paper which was executed by the decedent some time before the execution of the paper produced on this proceeding, and which was subsequently destroyed, and is not now in actual existence: Under this state of facts, I refused to allow Sterne Chittenden to intervene as a contestant in this proceeding, he having taken no steps to maintain the paper which he claims to have been the lost or destroyed will.

• Sterne .Chittenden now produces before me evidence

p. 136

' that he has commenced an action in the Supreme Court to establish the destroyed will, by delivering a summons in that action to the sheriff of this city and county, for service. ' I can therefore no longer refuse to recognize him as a contestant. I must assume that he has commenced his action in the Supreme Court in good faith. He now stands as representing a former testamentary paper, which he claims would be established and valid if he can defeat the probate of the one before me. I therefore admit Sterne Chittenden, as legatee under an alleged former will, as a party contestant in this proceeding.