In re Davis' Will

• Decision Date: 17 October 1905
• Citation: 75 N.E. 530,182 N.Y. 468
• Parties: In re DAVIS' WILL.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 468

75 N.E. 530

In re DAVIS' WILL.

Court of Appeals of New York.

Oct. 17, 1905.

Appeal from Supreme Court, Appellate Division, Third Department.

In the matter of the will of Jane Davis. From an order of the Appellate Division (93 N. Y. Supp. 1004,105 App. Div. 221),affirming a decree (92 N. Y. Supp. 968) admitting to probate the will of Jane Davis, Robert D. Chittenden and others appeal; and from an order affirming an order permitting the administrators of the intestate appointed in another state to intervene, George W. French and others appeal. Affirmed.

See 94 N. Y. Supp. 1143.

Jane Davis, a resident of Galway, in the county of Saratoga, died on the 19th of September, 1904, leaving a last will and testament by which she devised and bequeathed all her property, both real and personal, to her sister, Delia C. Davis, whom she also appointed sole executrix. The only other provision of the will was a clause revoking all former wills by her made. At the time of her death the testatrix was an heir at law and one of the next of kin of Samuel Davis, who had recently died a resident of San Francisco, Cal., and whose estate, of not less than $2,000,000, was then under administration in that state. When the will was presented for probate to the surrogate of Saratoga county, Robert D. Chittenden, the public administrator of Fresno county, Cal., applied for permission to intervene and be made a party to the proceeding, upon the ground that on the 3d of October, 1904, he had been appointed administrator of the goods, chattels, and credits of Jane Davis in the county of Fresno, and that he had entered an appearance in the settlement of the estate of said Samuel Davis. The application, although opposed, was granted, and thereupon said administrator filed objections to the probate of the will, upon the ground, among others, that as Delia C. Davis, the sole devisee, legatee, and executrix therein named, had died two years before the testatrix, the will passed no property and was ineffectual for any purpose. Probate was made, however, and an appeal was taken to the Appellate Division by the proponents of the will from the order permitting the administrator to intervene, and by the administrator from the decree of probate. Both the order and the decree were unanimously affirmed, and the unsuccessful parties appealed to this court. The Appellate Division allowed the appeal from said order, and certified the following question for determination: ‘Should an administrator of the estate of a deceased person, appointed by a foreign state, under a claim that the decedent died intestate, be allowed to intervene in a proceeding for the probate of the alleged last will and testament of the said decedent pending in the courts of this state, and to oppose such probate?’Elias H. Peters and John H. Burke, for Robert D. Chittenden.

John L. Henning and Irving W. Wiswall, for Thomas M. Dungan.

Edgar T. Brackett, Hiram C. Todd, and Halstead H. Frost, Jr., for George W. French et al.

VANN, J. (after stating the facts).

The able opinion below leaves little for us to say, and our only reason for saying anything is that the novelty of the questions presented may make a brief expression of our views useful to the profession.

1. The right of the surrogate to make the order of intervention depends upon the Code of Civil Procedure, which, after naming the persons who must be cited upon a petition for the probate of a will, provides as follows: ‘Any person, although not cited, who is named as a 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. A person so appearing becomes a party to the special proceeding. But this section does not affect a right or interest of such a person unless he so becomes a party. And in case the will propounded for probate is opposed, due and timely notice of the hearing of the objections to the will shall be given, in such manner as the surrogate shall direct, to all persons in being, who would take any interest in any property under the provisions of the will, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding, and any decree in the proceeding shall not affect the right or interest of any such person unless he shall be so notified.’ Code Civ. Proc. § 2617. The statute, in authorizing a person ‘who is otherwise interested in or defeating the will’ to appear and at his election to support or oppose its probate, means only a person who has a pecuniary interest to protect, either as an individual or in a representative capacity. An interest resting on sentiment or sympathy, or on any basis other than the gain or loss of money or its equivalent, is not sufficient; but any one who would be deprived of property in the broad sense of the word, or who would become entitled to property by the probate of a will, is authorized to appear and be heard upon the subject. Conflict of jurisdiction and delay in administration may thus be avoided. This accords with the general rule that every one may ask to be heard before a decree is made which may affect his rights, even if it does not finally determine them. Necessary parties must be brought in, and proper parties may be, upon applying in due form and season. The section is new, and in some respects formulates, but in others amplifies, the practice existing before the Code. Foster v. Foster, 7 Paige, 48;Matter of Greeley, 15 Abb. Pr. (N. S.) 393; Estate of Bunce, 6 Dem. Sur. 278; Dayton on Surrogates, 158; Williams on Executors, *295.

As was said by the learned surrogate in his opinion, ‘the right to administer the estate is a sufficient interest in this state to entitle the person in whom it is vested to contest the probate of a will.’ The administrator in California was authorized by a decree of the proper court in that state to take possession of the assets of the deceased in his county, to convert them into money, and to distribute the proceeds according to law. That decree was granted before any application had been made to prove the will. The assets were of great value, and the administrator had a personal interest to the extent of his fees for services already rendered, and a much more important interest as the representative of...