
    WHITNEY, Respondent, v. BRITTON et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    April 23, 1897.)
    Action by Eliza A. Whitney against Helen M. Brit-ton and others.
    John H. Clapp, for appellants.
    E. E. Baldwin, for respondent.
   PARKER, J.

The plaintiff, one of the two children of Elizabeth Lee, supposing that section 2653a of the Code authorized her to maintain a suit for the purpose of determining the validity of the will of said Elizabeth Lee, which devised and bequeathed to the defendants all the estate of the testatrix, commenced this suit and prosecuted it to judgment. In the meantime it has been determined that a person who dods not take under a will is not interested in it within the meaning of that section. Lewis v. Cook, 150 N. Y. 163, 44 N. E. 778. It follows that the judgment must be reversed, and the complaint dismissed, with costs, on the ground that the plaintiff had no legal capacity to sue.  