
    George P. Croker, Respondent, v. Smith Williamson, as Sole Executor and Trustee of and under the Last Will and Testament of Francis C. Taylor, Deceased, and Others, Impleaded with Harry Taylor and Thomas Taylor, Appellants.
    
      Limitation of action—action to set aside probate.
    
    Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 4th day of November, 1912, as resettled by an order entered on the 13th day of November, 1912; denying a motion for judgment on the pleadings.
   Order affirmed, with ten dollars costs and disbursements. No opinion. Present—Ingraham, P. J., McLaughlin, Laughlin, Clarke and Dowling, JJ. (Ingraham, P. J., and Dowling, J., dissented.)

Dowling, J. (dissenting):

The testator herein died at the city of New York on April 6, 1909, and his will was duly admitted to probate on February 31, 1910. This action was brought pursuant to the provisions of section 3653a of the Code of Civil Procedure, under which the action therein provided must be commenced within two years after the will has been admitted to probate. The defendants Harry Taylor and Thomas Taylor are non-residents, and as to them the summons was ordered to be published, the order therefor being made February 15, 1912, within, the two-year period, but the publication of the summons being commenced on March 14, and completed on April 18,1912, both dates after the expiration of the two-year period. In my opinion section 2653a is complete in itself and the limitation upon the commencement of the action which is therein provided is an exclusive one. This is not only apparent from the language of the section but from the extension of the time to commence the action which is thereby allowed to minors, persons of unsound mind and those imprisoned or absent from the State. This being so, the exceptions provided in the general Statute of Limitations are not applicable. • (Code Civ. Proc. § 414, subd. 1.) But even should a different conclusion be reached, and the exceptions applying as to limitations generally be held to apply, I do not believe that this case is brought within the exception. Section 398 of the Code of Civil Procedure provides that an action is commenced against a defendant when the summons is served upon him, but as it has been held that where the summons is published, the service is made only when the publication is completed, that clause of the section does not apply in this case. (McEwens v. Public Administrator, 3 Code Rep. 139; Reilly v. Hart, 55 Hun, 465; affd., 130 N. Y. 625.) The same section further provides that the action is also commenced when the summons is served upon a codefendant who is a joint contractor or otherwise united in interest with the defendant sought to be held. The summons was personally served upon the executor of the estate of Francis C. Taylor, one of the defendants herein, on December 20, 1911, within the two-year period, and on December 22, 1911, and still within the same period, upon Jenny Taylor, another defendant. But'Jenny Taylor is contesting the will whose validity the defendants Harry Taylor and Thomas Taylor are seeking to uphold, and her interests. are concededly adverse to theirs. The executor, it seems to me, has no interest in the estate, and certainly is not united in interest with the defendants, for he takes nothing by way of legacy or residuary bequest under the will. The sole remaining defendant is W oodlawn Cemetery, which was not served but voluntarily appeared on February 24, 1912, after the expiration of the two-year period, and while a legatee under the will, it has no interest in the estate or in this litigation for its legacy has been paid in full, and in the complaint herein it is expressly stated no claim is made against it. Under these conditions I believe that as to the defendants Harry Taylor and Thomas Taylor, the provisions of section 3653a not having been complied with,, the action against them Was barred, and that the motion for judgment in their favor upon the pleadings should have been granted, and that the order appealed from should, therefore, be reversed.  