Citation Numbers: 15 Abb. Pr. 81
Judges: Robinson
Filed Date: 2/15/1873
Status: Precedential
Modified Date: 2/3/2022
The name of Sheil, as contained in the foreclosure proceeding, is different from Shields, the name of the devisee and husband, but if the true parties were those that were served, an amendment might be made in this respect; but until so amended the objection must prevail for such variance.
The purchaser at a judicial sale is entitled to a satisfactory record title.
When derived through or under a will of real estate, he can claim that it should at least have been dnly es-‘ tablished as a will of real estate, by the decree of a court of competent jurisdiction which will afford him at least prima facie evidence of its validity, enabling him to maintain his title.
A will of real estate, if duly proved before a surrogate having competent jurisdiction, at most constitutes such prima facie evidence, liable to be repelled by contrary proof (1 Rev. Stat., 58, § 15 ; Staring v. Bowen, 6 Barb., 109; Nichols v. Romaine, 3 Abb. Pr., 124); and until the proofs and examinations taken by the surrogate shall be recorded, the record signed and certified by him, and his certificate under seal indorsed on the will, it does not become evidence (Vanderpool v. Van Nallenby, 6 N. Y. [6 Seld.], 198). Until such record is made of the proofs and will, the purchaser is in no condition to entertain any reliance on his title. In this case there has been no such record made of the proof and establishment of the will, but it simply appears that the surrogate, after taking such proofs of' its execution as were offered, indorsed on the papers the words and figures “Admitted September 12,1872.”
His authority to act was, however, dependent upon his having acquired jurisdiction of the heirs at law of the testator whose title by inheritance was cutoff by the will.
I can discover upon the papers presented no defect in this respect, except as to Philip McOaffry and James Fay. The only evidence upon which the surrogate ap
I do not consider it necessary to examine other objections made by the purchaser, as under these considerations, he is entitled to be discharged from his purchase and to have the moneys paid thereon, and his expenses of examining the title, refunded.
Motion denied, with ten dollars costs of this motion.
Compare Farley v. McConnell, 52 N. Y., 630.