New-York tribune., 1876-07-12

tnGrsbnd financial engagements to the amount Oh 'i ~
lions Of dollars, besidcs the SPECIFIC IeSaeies onVu ~
the WIN: and upward oi s2oO'Voo 10 eu'ii''0'
lat he had win aud testament In his 1oSssfsi"n'
duly aade and eNeerted by the tcsiainr III MS tti'
dated May 1893 by which he gave and devised hi en-
tre resduary real anq peSsn ,,1 10 IN n'5 lis . M
which iorner win he received from Mr. stewart some
months after the execution Of his last VIII o,,,,
William Libby, sho o'ei rXc1u3r ihea hs a,'u' ',d
stating. his acquaintSrce "dh TIE dcccaSsu ior u
business and M July, s67 became partner of the hIn
OF A. T. Stewart l. Co., and conu"ucn rs suvn W 10 10
deah; that their in tercoprse constant ana h' 50
far as il VAS possible tOI man. said stewart aet
and personally controlled his said busiucs III Wtnh
Taat from 1is snowledse seu, ooniso, Sn spopin in
making his Will in dons any other act In reference 70
IaI he 6d never heard or known OF any one claiming
to he blood relative OF his. that he ackhowIeuseu
any suoh hut ii Senealy understood that he Eau
The proceedings the probate, together with the al
legged viii and cOdiols as recorded, we're made part Vi
Prior to the presentation of the and afflavs
above stated the counsel FOR the executors and Tx
took preliminary objections, ard moved TO dismiss lne
petition the ground that - will OF real and personal
S!s9 te CfIt our ,c M " S Nc Sa;e scS probate il not
dependent upon az order or decree. anu Snch l"oh @
pcaced by any person claiming rights In hos'iy 10 me
will.
That the petitioner had not made prims facie easa
calling Tor answer tho satate provides ht when the
Surrogate shall DO satisfied that The proofs are neh -
are oured the statute hs cerhcate and Tue PROOF
rdorscd thereon entities the paper to &c re1l IN ov
dence. and that tue oct OF 1870 does NOT Ia we ,
gate power 10 vscse or set aside sch cerhGa'S, va.
the motion is MAIDS upon proceedings aGcy Dnu LOT
OF the will is undue influence by Mr. hilton or some per
son unknown Tho bugieB o. proof OF shch nbduo ln
fiusnce with the pstiiioger and that II the ptll'het
should succeed IN opening or Naoltlns the proi''o us
position IN respect 10 the feei estate Nou not couy
I've improved .reciel, and tho decision on c rEM
nary motion to dismiss was Reserved uni he 'eS weie
presented with the part oI the executor ana
After the answer. ami afiavs Tiled in opposition
TO the petition, Tor the petitioner offered 70 give
suc,ion Of witnesses; ont tAs motion To dismiss on aiI
the papers wa' ciaboratcJ rfued on both Sues anu
submitted fol the purpose oi decision
BASIS or TH2 NOTION.
The counsel for the executors and execuriH in their ar
gunen OF this motion nave discussed with great earnest
ness .ho force effect ct the facts set forth in tha re-
spect,e AMI aiaavits presented in their behh
and urged the inprucaby OF the alleged undue ihhu
ence upon the testaor by Mr. Hilton and by Others u-
known but it is clear to y mind that this motion to dis
miss must no con seced upon the assumption that the
allegations contained IN the potlloh are trne, anu no
from the acts ALLEGED by them, the motion Is based
upou alleged absence o reasonable ero1hd set ioih
bate and il the are to lee regarded .hey must be
| accepted rs forming issucs Of fact Tor inc
RE,R''Gi Scle i,srSs and " the pptuongrs wonld be
entitled 10 he unity 10 prove the allegations set
pon@n;s Of tie viii to contradict them and The
rutn of ayerncuts. The petition, after alleging
that the petitioner and others are collateral trAti g. OF
the ih blood and hris al aw. and e next of KIN OF hs
estatcr, statcs that tho viii and codcs "cc prsenlea
10 tine sI ,g.ty on tc l5th ds5 o APl 10 10 anu 4pi
MATE for their admission TO probate ana record 'u
that letters esaMeutary were Issod On 1ie % iA ""y,
said oicc as duly proved, Without citation
aIIey. 10 be he's a. law on noxt OF kin as required by
Chapter 400 Of the Laws 0i 1857 and without cilail
the claimant was deprived Of the opportunity 10 roIdrc
ali tie wiincssc- said Will to be produced and e3-
accordn; TO the act o. 1871, Chapter l29 ,-.,s..,
appears ~ t,io satcu Of tue %oo"' GUY Eei!ned @
petitiol lGUvcs, sud which presented 10 the SIo
gate, praying for pro9Ae OF sad va, ana cCaie,' % ,,
| ceased was The petitioner that SAID oecet'eIl
left him sury,y,r@ neither iathor, m',her, brother
! of them, nor my descendants Of his. nor any
relative next OF kin of SaiG deceased ON ! tnis ~
said petition tie proceedings Of probate W'o tahen ana
upon ihe assumption Of thcir uhh Il Is rninty CIR %
that there uOr,ed oftssuing citations TO persons 's
Ths tbird sWiysGn cf Section Of Chapter 45O Of
tho Laws Of 1887 prov Gcs tha hc viii fra.e L" hOh
real and personal estate ihe nauies' places "t
OF the heirs widow ard II O 1a oi TIE trsat0f Sih
be ascerained hy Surrogate by satisfactory evidence
aud Scci gyJNIacs tAAt thc surrogate s!idi thcie
@on an"sar an, atrn ne pi"alte OF Tue wii.
| lrs,cIibes certain facts which sHaH lie alleged
~ IN "s 'i'..iYh sS c,.G". scion proyiies that
before proce, ding 20 take he PROOF Of 1ny W" ne sfo
gate shall require stiIs ~ orN oNloh'r - ahNh,o "
The oi the cit'tion IN a9 'de Iesip'9 ~ "N
The proper persons referred 20 ~ f,yLmA q gro o'F
IDENTITY fhe hcr..atisH ana j'%t o. ~ II any oNI''.
In IbIs the Surrogate dd Ascertain D. si-,"'i',!
evidence ana iy ine oath or th' p'.ya u ~, a,i :" %
know, that ihcre "e'e Ari'aeF L,lt,AtN nor .eHI VI
KIN and TIE provisions u The statute ieerru u Wcl1
fny compiled iiA, and complete 3Iridicuon obtained
1 for tAe iuIpc-S ni probate.
THa POWER or TrE COURT.
II ia important Geterune ihe POKER OF THO
Court 20 opru yacac uody tue proba," II iis case
for while tnr ycouc'5' counsel Invoke that power -
matter OF lig il t. OBJECTED b. tAe COUNSEL FOR the ex
ecuiors ana cyc-rirS, thai as 10 WIZ OF real estate
there f. no poye. 90 yacat modify 'h' dccson or De
cree aami,tng tae Wal 'no cDHeils IA i'es'0h - pro
First bccau, t.e probate ie not DEPENDENT upon an
order Or decree OF tha surrogate nu. rpoH proofs on
which be IS sI'frtrd :" maxi. ias 'ei.@ 1L' & G'I r..
| yscd StatI'ts, marginal pa-ins 5s second, t"
cause tne s;,,,it en of personal
properly within ycaf as probate. Inatcs no pro-
vision t- .etirw or opening, 'd 'llhS "t FeFJns
wil o. r.a estate, ana j. s''s.''n ,i', .s i ''
case the viii ~ Jonu htiuh, % ~ y 2'9' = ,aI'L
rerng proof ~ wis, c., II O. provided D1t iLe hnro
gate shai Cntcg IA Ais 'alAniea me dcc,''h "lch ne
ity OF ay Will cd may 90 offered linn io! probate ana
Lint qGits clear that 'tne admission % me wa 10
question 10 probate deeisioi or determination oi
''I 10 C,nii N a,.t Io,er Frad 80 Surrogate Brad
ford held that the power 10 reNOse, otn, or ar tio Ge
ce.s OF the rrUites court, was c~-rHuh 10 tIc All
a.. h,tcr and "A necessary incident tne
nllN' " t! W -, ~ Snr,o ,.a over an matter,
! of the probate Of wills Ia Pew agt. Hastings BaIb,
S1r ~ me Chancellor Eciu tDat the surrogate had
| the power 10 open a decree taken ~ default,
| anl in consequence Cf Itista.c or accdrht.
In Proctor aga;u-t Wauu'k.r BIrD, Chyp 3O2 II l.
held that ie Surrogate has power 10 ryOkr letters OF
administration which have Dccn irfesulafy ana nrrOI.
| cry obtained upon false suggestion Of matter OI iaN
without due notice party rsntiuiy entitled 10 all
mnistratDn independently 81 the statute oi 1857 IN
DDUkee against C Larr Al BHrD 39l, u was hcld tit
tGc Leeis.a tute by ,eng tne provisions of tie he
YscJ Statutes proimting me exercise oi any n.sie
lion not expressly given the ste above ieIe fed O
intended thJt tnr Surrogate should have Incidental
puwcr open correct otGfeo hdHc thIOdsh iauu Vi
! "a . "a El.t"Ii.! i~Ct.
In 5crly agt. BIcEl-s, - n " TO- III was Hcil liat
the eject of the repeal By the at Of l5j chap 400 src