, 1873-02-14
The Nill Of 1872 Threg1 Out, and the
Fill Of 1871 kamitted to Probate.

ty is divided equally between Ida and Gabrielle
Greeley. Tho vanity OF human greatness ant
publicity could have no better proof than ths
fact that there was not single soul in tht
Court, yesterday, to ho:r the opinion o1 the Sur
rogate read executing the two reporters and tbs
County Clerk, and 80 the reading Was dispensed
With.
WEs1cuEsTEn nCouSTY-sUnRoeATE's COURT
In the matter OF proving tho last will and testar
1nent OF Horace Greeley, deceased. Robert s.
Hart for Ida L. Greeley, proPouent Of the will
Of Nov. 9, 1879. George P. Nelson and Joseph
H. Choate as counsel for guardian I'D lit. Of Ga
brieAe u. Greeley, infant heir-at-law and 1ext
Of hin. Isaiah J. Williams for contestant and
mopcnent Of the will Of Jan. 9, 1872.
- On the alleged will OF 1879 being presented fol
xrobate, Mcssrs. Samuel Sinclair, Charles Storrs,
named In an earlier alleged will Of the decedent,
bsaring date Jan. 9, 1871, appeared and pro-
pounded the latter vii, and claimed that the will
Of 1872
vAs yc1p FOE LACE OF rEsrA.1EsrAnY CAPACITY.
The cases thus became consolidated, and the
question to be determined WAS, which Was the
list will and Testament. The prepayment of tho
list viii and testament Of 1872 caused the sub
ecEihing Witnesses to that will to be examined
and made out pri'nn fdcie case for its estab-
tshment. Tho contestants then proceeded with
eridszee tending to show that the decedent Eas
not, It the time OF its execution,
CAPABLE OF MAKING WILL,
bY reason Of unsouudnesa Of mind.
4. At N early stage in the progress OF the case,
and after releases had boen executed by all Of the
legatees and devisees named in the will Of
1871, save the Children Of the deceased and
tho Children's Aid Society, and after Hiss
younger sister conveyance of one equal half
pa1t Of Ill the property c1aimed to have been
disposed Of by the will Of 1872, the counsel Of
Miss Greeley and thone Of her sister objected
That the contestants Of the latter will had no
longer any statute in Court and no right to con-
test the same. In this, think, they were
wrong. Our statutes Is, B. S., 9Th Ed 1916,
provides tnat the executor, devisee or legatee
named in any last will, or any person in the
however elight and queer it seems. the bare pos
Eti1ity of an interest is sufficient to entitle the
party to oppose testamentary paper. Civilians
on Executors, 264 Dayton's Surrogate, 158 and
1851 The executors named in the rill Of 1871
EAvE CLEARLY BY STATUTE An EXPRESS RIGHT
to have thEt will proved if they can establish the
fact that it is the last WILL and they may right
fully contend egaint the validity Of any alleged
Subsequent viii as an obstacle in tie way OF
establishing the will under which they claim.
Their interest in this regard is very apparent;
for il they can succeed in establishing this will
the title to the moyeable goods Of the testator,
though in ever so many different and distinct
" 20 rest presently upon the testator's denth.
Civilians on Executors, 551.) The probate for
letters testnmenta1y is merely operative as the
authenticated evidence, and not ut all as the
1OuQQdt10u Ql tl6 executor IlII6. 1OI 0e Qe11Fe8
all his interest from the will itself and the property
OF the deceased in him from the moment OF the
testator's death. {Daytons Surrogate, 213, cit
ing Williams on Executors, 225.) Il, however,
the will OF 1872 should be established as the
valld last will then the title would be elsewhere.
Thus the proponent and contestants are trying
:: their alleged titles. Besides,
--:I. r, TIE CHILDREN's AID SOCIETY
nau1ed In the will Of 1871, had not released or
abandoned its legacy aud had right to expect
$hA fS1 1orl- nft ;{n t,,{o
close OF the contest, and before exhAusting the
*eyidence on the part: Of the contestants for al
asged reasons, immaterial to the decision Of the
rase the counsel for proponent stated that under
timed BY her sister, any further effort to es-
+ tablish the will Of 1879 was abandoned-that
heJ withdrew from the controversy; and he
minated 4 willingness that the will Of 1871
. tbs guardian ad Item did not dissent from this
91ggesdun. 1hereupon the executors pro-
dnced the usual formal proof Of the execution
q tbs will OF 1871 and applied for letters tests-
1asntary thereon It seemed to be considered
p some Of the counsel that thus the will Of
:lsn and the testimony and all proceedings
:I,s!sting to it had been withdrawn from |
thu Court But this, apprehend, conld not |
oe done in this or any case. The statute says
:. - IHAI EVERY SURROGATE SHALL CAREFULLY
a 3, 365, "A, 9Th Ed-) Upon proof being |
nado Of the due service Of the citation the Sur
!ugate shan cause the Witnesses to be examined |
before him. All such proofs and examinations |
1ae testimony taken BY any Surrogate in rela-
een to the proof Of any will shall be reduced to |
's11hnE,~ and shall be entered by him in a proper
6oot to be provided and preserved az q part Of
hs looks Of his othce--Qb. 167, s 75.) The
.5rrogate shall enter in his minutes the decision
Which he may make concerning the suhiciency OF
tes proof or validity Of any Will which may be
oqered for probate, and, II he find against it,
tmll state the ground upon which the decision
~ sSsas cd; l5o SSs) The surrogate Of
vshteh shall be entered eli minutes OF proceed
twill be aeen that the language Of these pro-
nnons is imperative, and that the
ega9aoaAIE Aaa HAs NO DISCRETION ON THE SUBJECT. |
me testimony and proceedings cannot, there
taa be Withdrawn, but must remain, as part of
~ 1e 1ecofds md files Of his office, and decree
y y made. It would, however, be competent for
~ parties, being adults, in such case, 1t .ny
sssge o. the proceedings, to enter into stipula-
~. noa, 20 oe entered on the minutes, to authorize
ta ho court to make decree in pursuance of the |
stns ol tne stipulation Bnt here this difficulty
= s..g tsgatu to any such adjustment is encoun-
qsE q1Es and neither his guardian ad Men. or
~ eoa9sel make any admissions affecting un
n.M s.'Msoy the interests Of the infant This is
ls5: 5eacnaheo R;41o rqle.-(James Y. James, Paige,
son = baaeekley '. Van Roye, DC, 5s6- Stephen
m f.FAoHAss - ODD Hill IL t410 I]4ee ! -,
: s.. aooFe n =: Moore, Sandford, ch. 81, the !
~ !Ld1anoeor ordered the testimony Of an in
.san IN the case under the objection OF his
H. 1st@an ad hte1e to be stricken out.) Perhaps
ss I i h1atthest the Courts have gone in sanction
see act Of the guardian ad Gem in declining
~. est M n relation to the infants rights is the
e tS.e o1 Levy Levy, Mad. Rep, 245 but :
b.. ease clearly has no application here. All
~ subject, indicate t
.
,;ss.s saich all the Courts guard and protect the
e,1sI ss ot those whom the Law considers as in :.
i a9 b. ada19 ans
d. ~ ,1opoaent speaking for both children to
fs1a Ise viii Of 1871 to be admitted to probate
n,s.a % tsntamount to an admission that the =,
r 81 an Gated in 1872 and propounded IS the last =
s., I testament OF the decedent, purporting to
IT, ~ 1ger interest in his entate to his children q
nj ae VIII Of 1871, is not in fact the last will, v
G |en, ocght to be refused probate. Thus 1t T
b ". .alp1acticable, Us have endeayored
- hags, to withdraw the proceed "a
rs H..