In re the application for the probate of the will of Lasak , 1 Connoly 486 ( 1889 )

The Surrogate.

It is provided by § 2614 of the Code of Civil Procedure, that an executor, devisee, legatee or any other person interested in the estate of an alleged testator, may present a petition to the Surrogate, with a view to its probate. The next section provides for the citing of husband, wife, heirs-at-law and next of kin, but not the executor. Hence if any person other than an executor, applies for probate, the executor need not be cited or made a party to the proceeding. So too, all the parties in interest, without the executor, may appear before the Surrogate and ask for immediate probate, which will ordinarily be granted. The executor as such is not therefore, a necessary party to the proceeding. He is simply permitted to make himself such party by ■petitioning for a citation to be served on the proper parties. After all the parties have been cited, and some of them appear, a part of whom are desirous that the will should be sustained and others that it should be rejected, and they enter upon a contest in in regard to it, the executor, if he so elect, may sit by as an idle spectator of the controversy, or absent himself at his option. There is no power possessed by the court to compel him to take an active part, and no order permitting him to withdraw is necessary. He has no beneficial interest under the will and if he even decline to examine the subscribing witnesses, the Surrogate in the discharge of his duty would be compelled to do it, for he “ must cause the witnesses to be examined before him,” Code § 2618, and any court may propound to witnesses. Indeed Surrogates, in former times, personally examined witnesses, and where there is no contest, they constantly and habitually do so now.

Where, however, the parties appear on the return day of a citation in a probate case, it seems to me that the executor has no power to discontinue the proceeding or withdraw it without the consent of all. He is the mere instrument by which they are brought into court in order that they may assert their rights, and contend for what they may deem to be their interests. He, by the facts stated in his petition, has conferred jurisdiction of the subject matter, and by proof of proper service of the citation, of the persons, upon the Surrogate, and he cannot divest it of such jurisdiction by any act of his, more especially, after appearing in court and duly examining the subscribing witnesses to the alleged will.

The motion is denied.

July, 1889.

The Surrogate.

On the settlement of the decree, it was objected that as the executor named, who was the proponent, had withdrawn from the case, there was no proper person to apply for the entry of the decree. The law is not so helpless as to be at the mercy of a recalcitrant executor in such a case. It is the duty of the court with or without application, to see that a decree, appropriate to the matter, be entered.

It was also objected that costs should not be allowed to those who appeared in support of the will against the contestants, or, if they were, that only one bill should be allowed for all. It seems to be eminently a case for awarding costs against the contestants personally. They have compelled those supporting the will to attend again and again, and to listen day after day, to valueless evidence, given by witnesses whose cross examination even was not deemed necessary. Those favoring the will had each a perfect right to select her and his own separate counsel in the controversy. The court in Collyer v. Collyer, 4 Dem. 53-64, on the authority of Hauselt v. Vilmar, 76 N. Y. 630, allowed separate bills of costs to several contestants. No good reason is discovered why separate bills should not be allowed in a case like this, where those endeavoring to sustain the will appear by different attorneys. Their interests under the will were several and they were not united in interest.

The costs will be taxed and the decree entered accordingly.