New-York tribune., 1876-07-12


peh :9n shoai Inc regarded rs an lpp ~ :" ,se ni
crotOn Of thls Court and not as matter oi "oS""'
v the term dag elton is not meant such discretion
as r1rhs rcyiew eases where that discretion s'aI'
ton "a nkiSii'y 1Tiit,ns, ar dea! o. thealicI-
ton IN tO tc ciciisiautr ahdenty D. Vac cse'
II it ,louid appcFy - pft OF The Ircofi Ni' te w
creo sought 10 Dc vacated ~ s1ntry void u seems
10 me that the opening or setting aside OF SAci T ,
Mould lie jus;ii1be and wond not hc reversed on ap-
real wj,ilS IN o clear case OF equity uuconiIl'dcloi.
though addressed TO tic discretion o: the court dene'
i. would be rryefsc, nI appeal. g.
Isis objected by tho petitioners counsel tli,t the sur
rogae in this matter obtained no jurisdiction Tor thep
pose OF adntng tho Wil ~ pne,'Sh =" y t'y'1. ; r"t
caile Of the alleged cNStcnce or heirs ~ law hpt
Without at p.esoAt p'inS upon tho question MHr,hi q
deere absolutely VOID is for any purpose ~ oJ,rcuoh
TO the enforcement Of the alleged right % Tue ~ %
II is satcs,nt 10 say th%t Oh tie Pt9oL - =. p
Surrogate in thus lie obtained jurisdiction over ihe
that proof To b. heard IL is quite clear 10 nay h na'
where a pchn showed ease C. nferring JURISDICTION,
is not true 10 say tbt o subsequent dscotely :i per,
suHs who ratlcd 10 All H~rcSt III inc tSi's" rs
wonid only render ;ho dcrrse imperative as To The Per
son discovered TO b. entitled. A.,
suppose - an illustration, ;hat testator shon'd hie
lcaying supposed, bat three ch'ldrcn and upon
thai assumption tae viii siouid be ptoJatc' al p,ih,
supposed 10 DO dead. living u be seriously pre-
tended tiat such discovery would render probate
10 tue and those who had become rseSsed OF
IT, The most tGat conid no said in such case wollu
interests Of tho heir not ctc1 IL concerned ana hat nc
pro ato ,Or that purpose would ayo bcr sc aSi1e ~
all, appeal 10 the di,cro Lon O u" surfHae. Dueeu,
is t not the fact tnat the counsel fr the p"ui"hcr
acquicscs IN the continuance Of hc probat" 80 r H' c
hs Court ~ o,cn tb" same IS WI OF real estate, and
that they recognize the fact tIt toe surrogate 'h ls-
arded the alleged probate az Void for OF jtss-
dIction, it a gate clear they neo no inter- con oi s
court 20 relieve them Of the effect ol V0it decree
H. rs must for tho purpose OF this proceed ls
hc rctiiicncr Is an hcir II chAo' ~ cgniCh l, Wy .e
tunity to resist the probate oi tae viii ~ question:
and that II his relation TO tho itst'tor Iai
OF the wt wonld have Jeen iuedGcd IN the cita;"s
ana Afforded tho opportunity oi being Pres,ni at ihe
entitled him, bus for the vii 10 syc oi ihe personal
properly IA is wOnld be no doubt OF bS F;a; To An
Gpnuirg ~ tho prUbae Tar as The insi-uncht H 70
poundes. u WI Of personal property ~ conrcinr'i
The ease, oith. Public Admnisra. ast Peers, Bad
burg agt. Cf Paige, 1915 Bloom aga. BariicS, mn
100; CDrwin agt. Hrrntt, Barb. 81; She!i@n aSt
cited oy counsel for the pconng seuin 10 sustain
his right 20 such an opening Of tn' .rrc-' Nht Al -
that as tds appiicttbrn j. addressed Z" tnG is
croiion Of tJc ccGrt ats exercise hay w he -ill p
cl,e Ui The difference in the altc; VI t'r p"Ai" oi
Will relating personal properly, and one r't ~ 20
real csl,o; md this brings me % ns oniderli'n OF
the inal and more Important question involved ID 1a
proceeding.
rxrHCIsE or TUE COURTS DISCRETION
In Harrison agt. Ridley 1t was held that bill!
OF reyvOr did not lie by an assignee. In Trip
a Cooke GO Wendell 14l Senator Nerpanck. alter dis
cSsing the judicial meaning Of discretion at page 1872.
uses this significant language: "Jacal discretion Is
phrase erea, laude but 1t means the a 'larv
will Of the judge; 1t is always 1s Chief
Justice Marshall defined ~ legal dis rcton. T.
DE exercised in discerning the course pic'ofln,d
duty OF cDUyts - follow -t j. Ia be exercised no. 10
givs effect 10 te viii o the JudZ- but 10 that ~ thc
law" such discretion b. exercised IN relation 10
tre convenience Of courts, suors. AMI the expeon OF
business, upon the evidence - = some int'r'o'uioy
10 or even advise another. definition of Judicial d!s
c-,ion 10 h" necessary IN ts case ~ ofle to De
cIse OF discretion. rne right exercise of tnh d.
ion IN tins ease, n seems To mr, involves Ac rsiS
he effect of sch relief upon the adverse phrt ANA II
is Judicial balancing ot ihoso rgh's winch constitute
IisBt exercise OF such discretion. .
now como 20 the consideration OF the advantage
which would onuie H t;e IeunYnsr' Hnd ths 'h,a' a., an
estate IN question by an opening ~ the probate By
ChApcr 2s OF the Laws ot 1893 is proridrd ihLt IN
estate may be determined b. The supreme Court i'e
same the validity Of any decd. 81, ana mat aiy
RSTedtamcg. gn by dieS"cnf from s an ancestor no
died no!dinc, aud bouS In possession OF the
standing any apparent dcysa by such ancestor an! auy
poss,-son held under he same devise, crowded thtt
sui action, proceeding thu such uplHii d. r' -
Won't ia tho rnaL>r Il tor k,nm Val 90 y y ip7l II
Is hrd "a the pr1Jt, OF VII 0i Tg! csAic IS hpi c'a-
elusive, either 80 $50 validity or ~, execution o. hr
viii By section as Of the Laws ~ 1909 t1s record ~
"A Wil gwen evidence j. made or,ctiS ~ AL ei''' ~
Original viii " produced ana proved hHl ny Hh t.,
manner be rcp-cd ~ rourd c'ory proof In N"odlnll
Will B.. held npt conclusive upon tho Lcit HrA lh"I TIE
record b, oulj prima iacla evidence. .
Under these slstlr7 and AUTHORITIES ci.ed ihe7c seems
,.,in ~ any prsinl fari, o,Itsnc, uaJ that ~ any
proceed by the dr g-d hr.rajaN "t iho ',sih'r To
& fTf, Of that S,,bais NAV bc .,tlrjel n is entirely
clear ths C.au has power - -iiut - int iuti
ulapr. any Affirmative Iri,t by Niuth tir- iiSl- u lhe
rcl! estate ia question may be determined. II tho pro
Ice yitntd. would tlB urLttur' b. IVA any
better position % cnioico las Ic5rl cih 10 tit l'
bate renamed lie take proceedings ~ an",hor
by Clcet.cni. or pdTbto, ana must ''ri' $40"
the rrnduco1 81 tGc Probate would moi he even pruIu
iIci6 evidence against MS night uni,., tao party n'o
po.ine the pt,re an obstacle 20 me Peuli, Hrt'
clan could show aiunItiyci, hat that The petti"n'r
wa, Giy cited on iIc proDa' ana a. ne "'io 30 ,i'e5
tack TIE validity Of the VIII as though II were mover
proved.
h,lr should r1uc crctm-i be would have 10 produce
some evidence O ln Ate ana The d,liSec III nc VI"
Wuali Sc compelled 10 proairc TIE Viii "H Suihilcht
,ydrncr ~ H. luc cyeca,oI that n any event ~"
opening the decree wond not relieve Hc peut"nor
on any embarrassment IN respect 10 tue proof o' his
ute but II woUli add somewhat 1 tii" burden ~ th"
dey isre IN proving the execution VI thc Will II was
Ied Dy cOtus, or thr petitioner iiIt 1hdcri statute
of 1870, ali' dy cited, tIcte was ~" authority for the
cianaut raise the question 20, 20 tie abs nee O. jars
dicou of the sGrTogai" 10 probate the " except ~
IN application thr Court 90 OItb o Nacac TIE probate
because not party 10 the proceedings, and would
therefore nave no standing ia appeal
OBJECTIONS 10 JURI-DlCilON MAY BE RAISED.
On a cuolal consideration of TINS objection | am III
cincd 10 Tie opinion tLat any objection to jurisdiction
or otherwise G respect 10 the Probate Of the VIII Ia Ges
iun or It's validity, due execution, may be raisoG, in
any proceeding instituted for the purpose Of enforcing
claim to Ae gpa estate" and that the statute OF 1870
womd mol ane.i pofsoh VINO was NOT hi'e party 10
the probate.
on iie argument IL urged BY counsel for the
tors and cXccuIiN that The moving papers d not -LDT
probable ground for den al OF ihe probate OF the viii
question opened, because Of tre improbabiy uf Nh
,ut NJ al, N4p
to his WE, would seem 10 have the best rlght
10 1t, while Mr. Hilton, he was not IA.
tcrcAtcd IN tho real estate, appears to have had
no motive for the exercise Of such influence
But IN ,iis case IL woud DE unprecedented We'll