In re Yerks' Estate ( 1904 )

WILLARD BARTLETT, J.

This matter has been submitted once before, and the proceeding was dismissed because the case contained no stipulation as to the nature or form of the judgment to be rendered. A stipulation on that subject has now been inserted, but the submission is still so defective that the court is unable to render judgment upon it. There is no statement as to whether the direction to sell, contained in" the ninth clause of the will, has ever been carried out, nor are any facts set forth sufficient to indicate the basis of Mrs.- Van Alstyne’s claim to be entitled to the whole of the farm in case the court shall find that Mrs. Clark has not established her title. Furthermore, in a submission of this kind, one of the parties should be designated as the plaintiff and the other as the defendant, and the claim of each, in the nature of a prayer for judgment, should be set forth. 'Otherwise, the provision of section 1280 of the Code, declaring that the controversy becomes an action after the filing of the submission, and that each provision of law relating to a proceeding in an action then becomes applicable, cannot possibly be carried out. In view of these defects, we will refrain from disposing of the matter until the next term of court, in order to give the parties an opportunity to file an additional statement, under section 1281. If this is not done during the present term, the proceeding will have to be dismissed.

All concur.