The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-07-12
MR.. A. T. STEWARDS WILL.
THE PETITION OF MARY STEWARDS
SON DISMISSED.

Surrogate Calvin UpboIdine the Private Pro.
bate on the Night Of the Funeral Of the
Dead Merehsnt-An Appeal to be Taken.
Surrogate Calvin rendered q decision
yesterday upon the order to show cause why the
private probate Of the instrument propound-
cd as the last will aud testament Of A. T. Stew
art, deceased, should not be adjudged void, re-
voked, vacated, and set aside.
the petitioner In the case Is James Bailey, son
OF A. L. Stewards aunt, Mary Bailey. and the al
legged will. bearing date March q. 1873 appointed
Henry Hilton and william Libby executors, and
Mrs. Corneia NJ. Stewart executrix.
The petition alleged that no citation or notice
to appear was issued, or directed to be served
upon the petitioner, or any OF the heirs at law.
or next OF kin, as required by law, or Issued TO,
OF served upon the Attorney General Of the
State; that no opportunity was Afforded petit
tioner, or auy OF said hers, &C., to require all
tue witnesses to said viii. &c, to he summoned,
or to request other witnesses to be examined,
or TO be present at, or contest the proof OF said
will.
not made public at the surrogate's court room.
or ONCE, but privately. In unusual haste, on the
day OF the funeral OF said stewart, without
That said papers are not the last will and
testament and codicils Of said Stewart; that
they were obtained, and the execution thereof
by said stewart was procured by circumventiun
and undue influence practlsed upon MIN by
Henry Hilton or some other person unknown
rHE DISCOVERY or HEIRS.
The Surrogate reviews the answers OF tho sx-
ecntors aud sxeeutrlr, anu cites numerous au-
thorities. lie says:
alt Is quite clear TO my mind that when pc
tltiun showed case comforting jurisdiction,
the Surrogate had authority to act In the prem.
ises, and is not true to say thar the subsequent
discovery OF persons, VINO were entitled 90 IN
interest IN the estate as heirs, would render the
decree void-such state of facts would only
render the decree imperative, as to the person
So discovered to be entitled.
suppose, rs an illus tr.tion. that a testator
should die leaving, as Is supposed, but three
children, md upon that assumption TIE will
should pe pronatec, and many years thereafter
to be dead, vas living, can 1t be seriously pre-
tended that such discovery would render a
:" he cases OF The Public Administrator art
Peters bradford, loo. Skidnlore agt. Davies. 10
Paige, 3l6 Nrsedenburg aet. Chf, Paige, IL {:
MsTiIt. ) Bara' al: sbeIdsn AIT. wright, \.
Y. iW slolev AIT. AMI. ID ", lsJ cited by
the counsel for the petitioner seem TO sust In
hi- right 20 such an opening ot the decree, but
1t IL claimed ON the part OF The counsel for the
executors and executrix that as tins application
"a addressed TO the discretion of the Court, It's
exercise may well he denied, because Of the dif-
ference ~ tue eIec. Of the probate Of a will re-
lgting to petso al property, and one relating to
real estate and tins brings ae TO the coDsidera-
ton of tae nn,i anu more important question
involved Ia this proceeding.
PRIMA fACtE EVIDENCE.
"Under the statutes and authorities cited
there seems to ne no doubt that at most the
PROBATE 81 tue will IN question Is only prtma
facie evidence. and that any proceeding ny
the sllcged helrs-at law OF the testator to en-
force cir alleged rignts. ih respect Of their
real estate, the force of that probate may DC at
1t Is entirely clear that this Court has no
power TO grant to the petitioners any afirma-
i've relief by viii h their rients T. the real
" III the probate snouid be Op' ned, would the
petitioner be IN any better position to enforce
his alleged claim To the real estate lett ny tic
testatur than lie would " the prooate remained 2
lie must taSe Ut ceedingS IN another court by
ejectuent or partition, ana must there snow
ia I he u an heir emitted; aud when he mas
shown that, tue production II the probate
would not oe even prina facie evidence against
his right, unless the party inictpostng the pro-
tate as IN obstacle IL the petitioners claim.
could snow afirmativeiy that tho petitioner
was daily cited on the prooate, and VI he were
So citel. under well settled authorities in such
cases. ne could attack the validity Of the Will, as
though II were never proved.
Again. suppose the will had been proved.
and ths heir should bring cjrctment, he would
have TO produce sonc evidence OF his title, And
the devisee 10 the will would ne compelled to
produce tue will, with sufficient evidence " its
due execution, so that, la any event, the open
ing Of the decree would not relieve the pet-
TONER from any embarrassment In respect TO
the .root OF his title. but II would add some
what TO the burden Of tue devisee In proving
the execution OF the Will.
THE STATUTE or 1870.
II was urged 10y counsel for the petitioner
that under the statute OF 1870, already
cited, there was no authority for tine
claimant to raise the question as 10
the absence Of jurisdiction OF the Surrogate TO
probate the will, except by an application TO the
court 10 open OF vacate the PROBATE, because he
was not party to the proceedings, aud wouid
there ore have no standing 10 appeal.
"On n careful consi deration Oi tins objection,
am inclined to toe opinion that any objection
TO iurisstct1oD, or otherwise. 10 respect TO the
PROBATE OF the Will IN question, or its validity or
| due execution may be Raised Ia any procee ding
| Instituted for the purpose OF enforcing ciai "a
| TO the real estate, and that the statute OF 1870
| would not affect person who was not III ade a
party to the PROBATE"
| In conclusion the Surrogate saws:
"Whils tue law should be administered with
| care alike ia cases Involving sUlall and large
mounts, and with absolute I'm par iaity, yet ia
q case OF the unprecedented magnitude OF this
proceeding. likely TO affect such vast Interests
and challenge public attention, II has seemed O
| me that extraordinary care and diligence should
be observed In passing upon the questions in
volved.
III am right In my estimate OF the effect
| upon the alleged rights OF the petitioner and
| those whom he assumes to represent in the
| opening OF the probate, 1. seems to me that IL
would De an unwise aud unjust exercise Of the
judicial discretion of this court 70 open the pro
bate " hsre no practical anc substantial benefit
| can enure to them, while Il would be likely to
throw discredit upon the IT, OF the real
tate devised TO Mrs Stewart, aud paralyzs the
great enterprises now In progress.
For the reasons above stated the petition
| should be dismissed"
Mr.. W. ID. Booth of counsel for the petitioner
| told SCN reporter that the petitioner would
| proceed 10 enforce his rights either by appeal
or by application for II inandamus.