
    
      In re Phalen’s Will.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    1. Wills—Probate and Contest—Appealable Order.
    An order of a surrogate refusing to dismiss a petition for the revocation of a will, for the omission of a legatee as a party, is not appealable.
    2. Same—Amendment—New Parties—Limitation of Actions.
    Such a petition may be amended by making the omitted legatee a party, though the year after probate within which such a petition may be filed, under Code Civil Proc. N. Y. §§ 3647-2649, inclusive, has expired; as section 2517, providing that a special proceeding is instituted when a petition is filed, if citation is served with-0 in 60 days thereafter on the adverse party, or on one or more of the adverse parties, who are united in interest, does not apply to such a case. f
    
    3. Same—Discretion.
    Whether to dismiss the petition or to allow such an amendment is discretionary with the surrogate.
    4. Same—Supplemental Citation.
    Under Code Civil Proc. N. Y. § 2481, authorizing a surrogate to issue a supplemental citation, where all necessary parties have not been cited, such citation may issue upon the amendment mentioned, for the purpose of bringing in the new party.
    Appeal from surrogate’s court, Hew York county.
    Charles J. Phalen presented his petition for the revocation of the probate of the will of James Phalen, deceased, and the executor, Edgar Lockwood, moved to dismiss the petition for the want of a necessary party, Mrs. Phalen, wife of the petitioner, and the petitioner moved to amend by making her a party. The surrogate allowed the amendment, though more than a year had elapsed since the will was probated, and Catherine S. Phalen and other legatees appeal.
    Argued before Van Brunt, P. J., and Macomber and Brady, JJ.
    
      J. J, Machlin, for appellant. IS. W. Sheldon, for executor.' C. H. Wood-ruff, for respondents.
    
      
       Affirming 3 N. Y. Supp. 205.
    
   Van Brunt, P. J.

The order denying the motion to dismiss the petition is clearly not appealable, as whether the surrogate should or should not, upon the return of the citations, decline to grant the relief asked by the petitioner, is a matter to be then determined, and, although the surrogate might upon sufficient facts shown have dismissed the application before such return-day, his refusal to do so is in no way a final adjudication upon the matter upon which an appeal could be taken. The appeal from that part of the order amending the petition, and from the order directing the issuance of a supplemental citation, presents a different question, and one which must be considered upon its merits. The principal ground upon which the appeal is based is want of authority upon the part of the surrogate to entertain the motion in that the statute of limitations had run. There seems to be no question but that a court has no power to deprive a party of a statute of limitations which has run in his favor by bringing him in as a party to an action already pending. If the statute has attached, devices of this kind cannot be successfully resorted- to in order to deprive a party of that repose which the statute has given him. But it seems to us that a brief examination of the section of the Code under which this proceeding is initiated will show that, in favor of the parties who were not parties to this proceeding at its initiation, no statute of limitations had run. On the 8tb of April, 1887, the will of James Phalen, deceased, was admitted to probate, and on the 5th of April, 1888, the petition for revocation by the petitioner was filed, and a citation issued thereon. This was done pursuant to the provisions of section 2647 of the Code, which provides that a person interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate’s court in which a will of personal property has been proved a written petition, duly verified, containing allegations against the validity of the will or the competency of the proof thereof, and praying that the probate thereof may be revoked, and that the persons enumerated in section 2649 may be cited to show cause why it should not be revoked; and the surrogate is required, upon the presentation of such a petition, to issue a citation accordingly. Section 2648 provides that such a petition must be presented within one year after the recording of the decree admitting the will to probate. And section 2649 prescribes that the petition must pray that the citation may be directed to the executor or administrator with the will annexed, to all the devisees and legatees named in the will, and to all other persons who were parties to the special proceeding in which probate was granted. It is to be observed, upon a consideration of these sections, that the presentation of a petition of the character mentioned, within one year of the recording of the decree admitting the will to probate, is in time, and prevents the petitioner from being shut out from the relief granted by the statute, because the limitation of time had expired. There is nothing whatever in the section in reference to the necessity of the service of a citation in order to prevent the statute of limitations attaching. All that is required is that the petition shall be presented within a year.

In the case at bar a petition seeking the relief provided by section 2647 was presented within a year. It is true that such petition was defective in respect to some of the parties. But, under the general power which the surrogate has to amend proceedings, he had a right to allow the amendment of this petition, which was defective in some of its allegations. By the filing of the petition the surrogate had acquired jurisdiction of the proceeding, and the proceeding had been initiated precisely the same as by the service of a summons in an action upon an infant, the court acquires jurisdiction, and the procedings looking to the appointment of a guardian, which may be upon their face fatally defective, are the subject of amendment.

But it is claimed that by reason of section 2517 of the Code it is necessary, in order to prevent the statute of limitations finally attaching, that the citation issued should be served within 60 days after the presentation of the petition. An examination of this section, however, seems to show that it has no application whatever to the proceeding which was initiated by the presentation of the petition to the surrogate in this matter. The language of this section is: “The presentation ot a petition is deemed the commencement of a special proceeding,' within the meaning of any provision of this act which limits the time for the commencement thereof.” In the section under which this petition was filed there is no special proceeding referred to, nor is there any limit of time fixed in the succeeding section which is dependent upon the commencement of any special proceeding. The limitation is determined by the doing of a specific act, and, although the provisions of section 2517 are in harmony with the provisions of section 2648, still, there being no question of a special proceeding in this section, it could not have been intended that section 2517 should apply. That section applies to those provisions of the statute which provide that within a certain time a certain proceeding shall be taken, and the presentation of a petition is to be deemed the commencement of this proceeding, as in the case of a summons the delivery of a summons to the sheriff for the purpose .of service is equivalent to the commencement of an action against the defendant, and prevents the attaching of the statute of limitations, provided certain other requirements are subsequently complied with. In the casetit bar, therefore, by the presentation of the petition in question the statute was prevented from running.

The authority of the surrogate, in a proceeding which has already been commenced to issue a supplemental citation, does not seem at all doubtful. By subdivision 2 of section 2481 the surrogate,'in court or out of court, has power, where all persons who are necessary parties have not been cited or notified, to issue a supplemental citation for the purpose of bringing in these parties. Under this provision of the Code, therefore, the surrogate had ample authority to issue the supplemental citation in question, for the purpose of bringing into the proceeding which had already been initiated those parties who were necessary to be in court before him, in order that there might be a complete adjudication upon the subject-matter presented. We are therefore of the opinion that the petition was filed in time to prevent the running of the statute, and that the surrogate had power to amend the petition, and to bring in those parties who liad not been previously named, and who were necessary parties for the complete determination of the subject-matter; and that it was a matter within the discretion of the surrogate, even if a proper case had been made out, whether or not to dismiss the petition upon the application of the adverse parties, and that they not having done so in no measure precludes him from disposing finally of the application upon the grounds presented upon this preliminary application to dismiss. The appeal from the order denying motion to dismiss the petition should be dismissed, and the orders amending the petition and directing the issuance of a supplemental citation should be affirmed, with $10"costs and disbursements. All concur.  