In re the Probate of an Instrument Purporting to be a Codicil to the Last Will & Testament of Coryell , 39 N.Y.S. 508 ( 1896 )

Landon, J.:

The appellant now has a lien upon real estate of which E. Josephine Whitman has the legal title.' It is proposed to destroy this lien by probating a codicil to the will of Josephine’s father, •Which will was duly probated five years ago. The surrogate’s order denies to the appellant leave to appear and contest the proposed probate, thus 'denying to him the right to resist at the threshold, where it can best be done, the attack lipón his lien.

Section 2617 of the Code of Civil Procedure provides : “ Any person, although not cited, who is named as devisee or legatee in the will propounded, or as executor, trustee, devisee or legatee in any other paper purporting to be a will of the.decedent, or who is otherwise interested in sustaining or defeating the will, may appear, and at his election support or oppose the application.”

We think the appellant is within the letter of the statute, and ■clearly within its spirit. (Lafferty v. Lafferty, 5 Redf. 326; Terhune v. Brookfield, 1 id. 220; Walsh v. Ryan, 1 Bradf. 433.)

In Matter of Brown (47 Hun, 360) it was held that the receiver ■of the property of a judgment debtor could not contest the probate of the will of the wife of the debtor, although if probate should be denied, the debtor would come into property enough to pay his' debts. The difference between compelling a debtor to acquire property enough to satisfy his creditors, and disabling the creditor to protect the lien which he has already acquired upon his debtor’s property, is apparent.

Section 2514, subdivision 11, is cited as limiting the meaning of A “person interested.” It declares that when the expression “is used in connection with' an estate or fund (it) includes every person entitled either absolutely or contingently to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor.” Whether a will is admitted to probate or not, does not affect the creditor of the decedent. He, therefore, need not he a party. The inclusion of the parties named is not the exclusion of those also included by the terms of section 2617 of the same chapter of the act. Section 2617, in addition to the parties therein enumerated, includes a party who is interested otherwise than are the enumerated parties, in sustaining or defeating the will. W e think under the circumstances the appellant is such a party.

The order of the surrogate is reversed j with ten dollars costs and ■disbursements against the proponent, and leave is granted to the •appellant to appear and contest the probate.

All concurred.

Order reversed, with ten dollars costs and disbursements against ■respondent, and leave granted to appellant to appear and contest the probate.