
    Hornsey Will
    (No. 2)
    
      Martin A. Heckscher, for father of minor grandchildren.
    
      L. Pierre Teillon, Jr., for executors.
    
      Parke H. Ulrich, guardian ad litem.
    July 2, 1981:
   Opinion by

Taxis, J.,

This opinion arises out of exceptions filed to this court’s decree of June 2, 1981, whereby, upon the recommendation of the guardian ad litem, this court decreed that an appeal from probate be withdrawn. Counsel for the father of the three minors, as parent, natural guardian, and next friend, filed exceptions on June 12, 1981, to the court’s decree and the report of the guardian ad litem.

A recitation of the background giving rise to the exceptions is in order. Ethel W. Hornsey (“decedent”) died October 3, 1980, leaving two surviving children, John Hornsey, III and Frances H. Otley, and the three minor children of a deceased child, Carol McCormick, namely, John M. McCormick, Jr., William H. McCormick, and James W. McCormick. Without notice, on October 10, 1980, John Hornsey, III, and Frances H. Otley petitioned for probate and were granted letters testamentary.

Under the terms of the probated will, decedent left her tangible personal property to her two surviving children and made cash gifts of $10,000 each to each of her three minor grandchildren, the children of her deceased daughter, with the proviso that such amount should be reduced even to zero by any amount that such grandchild receives from the trust under will of decedent’s husband. The court was advised that it was most likely that the three minors would receive more than $10,000 under the decedent’s husband’s will and were thus effectively disinherited.- The court was further informed that, by a prior will, decedent made equal distributions to her three children and provided that the share of a deceased child should be distributed to the child’s living issue, per stirpes.

The procedural history emerges from this background. On December 30, 1980, John M. McCormick, as natural guardian and next friend of the three minors, appealed from the probate of the will. On January 30, 1981, the parties appeared before the court on a return day for the petition for citation issued to John Hornsey, III, and Frances H. Otley (“respondents”) directing them to show cause why the appeal from probate should not be allowed. Respondents preliminarily objected to the petition individually and in their capacity as executors, stating that John M. McCormick had no standing to contest the decedent’s will. By agreement of the parties, Martin A. Heckscher, Esq., counsel for John M. McCormick, filed a petition to have himself appointed as guardian ad litem for the three minors in order to contest the will on their behalf. Respondents thereafter filed objections to the petition of Mr. Heckscher, alleging a conflict of interest in Mr. Heckscher. The court thereupon appointed Parke H. Ulrich, Esq., as guardian ad litem for the three minors, by opinion dated March 2,1981.

On May 28, 1981, the guardian ad litem filed his helpful report wherein he recommended that the appeal from probate be dismissed. The court dismissed the appeal from probate on June 2, 1981, and John M. McCormick, as parent, natural guardian, and next friend of the three minors, excepted thereto on June 12, 1981. On June 29, 1981, the court held a conference with all parties in interest.

It appears to the court that there is a clear intention on the part of the parties to litigate this matter. Further, the court recognizes that these minors have not had their “day in court.” Their rights as beneficiaries and the fact that they are minors under a disability must transcend any inconvenience that may be visited upon the estate by this litigation.

The court finally notes that, since the instigation of this litigation in January, 1981, this matter has not proceeded to the merits of the case but has been bogged down in skirmishes which do not advance the administration of this estate nor the interests of the minors. In order to move this matter forward, the court enters the following:

Decree Nisi

And Now, this 2nd day of July, 1981, after conference with the parties in interest and upon the exceptions filed by Martin A. Heckscher, Esq., attorney for John M. McCormick, as parent, natural guardian, and next friend of the minors, John M. McCormick, Jr., William H. McCormick, and James W. McCormick, it is Ordered and Decreed that:

1. The appeal from probate is reinstated;

2. The appointment of Parke H. Ulrich, Esq., as guardian ad litem, is herewith rescinded; and

3. Martin A. Heckscher, Esq., is appointed guardian ad litem for the three minors: John M. McCormick, Jr., William H. McCormick, and James W. McCormick.

This Decree will become final in ten (10) days from the above date, unless exceptions are filed thereto. 
      
       Editors’ Note: For this opinion see 1 Fiduc. Rep. 2d 149.
     