In re the will of Lawrence ( 1848 )

The Ordinary.

1 am unwilling to let this probate stand. The second section of the act respecting the Prerogative Court, (Rev. Slat. 203,) provides that probate of any will shall not be granted by the Ordinary until proof be made, to his satisfaction, that no caveat against proving such will hath been filed in the office of the Surrogate of the county where the testator resided at the time of his death, or that notice hath been given to all persons concerned of the application to the Ordinary for such probate. The last clause, requiring notice, is in general terms, and cannot be confined to wills of testators who resided in this State at the time of their death. What the notice should be of an application to the Ordinary for probate of a foreign will I need not now say; it may be that the Ordinary would consider notice by publication in one or more newspapers sufficient; if so, the Ordinary should be first applied to for an order directing such publication. But in this case no notice of any kind was given to persons in this State interested in the estate of the decedent.

Again, whether a writing made by one residing in New York, and who afterwards died there, which is not a will in New York, can be a will in reference to property in New Jersey owned by the decedent at the time of his death, is a question which the Ordinary would not be willing to decide without proper notice to all parties, giving an opportunity for solemn argument.

Probate vacated.