
    New York County. Surrogate.
    Hon. D. G. ROLLINS,
    July, 1882.
    Stapler v. Hoffman. In the matter of the estate of Catharine Kolb, deceased.
    
    The widow of a son of decedent’s husband, by a former wife, has no standing in court to petition for the revocation of letters granted upon decedent’s will.
    
      It seems, that a creditor of a decedent cannot, as such, make himself a party to a contest over the probate of his will (Code Civ. Pro., § 2514, subd. 11; § 2617).
    The passing upon the sufficiency of evidence in support of an alleged will is a purely judicial act, which the court cannot delegate to any person.
    A party who has successfully taken steps to obtain letters on a will, before procuring a decree admitting it to probate, is not entitled to the entry of such a decree, nunc pro tunc, since he cannot comply with the rule requiring an applicant in such a case to show that the omission to enter was due not to his own carelessness or misapprehension, but to some act or omission of the court.
    Petition by Henry B. B. Stapler, in behalf of the widow of Jacob Kolb, for the revocation of letters of administration, with the will of decedent annexed, issued to Nicholas Hoffman, legatee thereunder.
    Stapler & Wood, for petitioner.
    
    Michael C. Gross, for W. Hoffman.
    
   The Surrogate.

The decedent was the second wife of Peter Kolb and survived him.. By his first wife, Peter had a son Jacob, now deceased, to whom, by his will, he gave certain real estate, after the termination of a life interest which he devised to this decedent. A paper, purporting to be the will of Catharine, was offered for probate in this court in November last. The subscribing witnesses to this instrument were examined by one of the clerks in the Surrogate’s office, and blank forms, such as are ordinarily used when there is no contest over the probate of a will, were duly filled up, in accordance with the statements made by such witnesses. After this had been done, the attorney for one Nicholas Hoffman, claiming to be the decedent’s sole legatee, applied to another clerk for letters of administration with the will annexed, being assured that, as the proofs of the will seemed abundant, and as no objections thereto had been interposed, a decree admitting the same to probate would be straightway entered in due course of business. The letters were prepared in proper form, were signed by the late Surrogate, and were issued to the applicant. But the instrument propounded as the will has never been admitted to probate. It appears that, after its subscribing witnesses had been examined, notice of an intention to contest its validity was sent to the Surrogate’s office, and a memorandum of that fact was made upon the papers. The depositions of the witnesses do not purport to be sworn to, though it is alleged, and is not disputed, that oaths were in fact administered by the assistant of the Surrogate who customarily attends to that duty. Neither the administrator nor his counsel were advised of the fact that no decree had been entered admitting the will to probate, or that any person intended to contest its validity until June last, when the present Surrogate ordered the holder of the letters to show cause why the same should not be revoked. This order was issued upon the petition of the widow of Jacob, who seems to claim, as such, an interest in the estate, though neither she nor her husband were of kin to the decedent in any degree. It is evident that she has no standing in court to contest either the will or the grant of letters. It was not necessary to cite her upon the petition for probate (Code, § 2615), and she is not included among those who, though not cited, may make themselves parties (Code, § 2617). Her petition must therefore be dismissed.

In behalf of Hoffman, who holds letters of administration, I am asked to enter a decree nunc pro tunc, admitting the alleged will to probate. If the facts otherwise justified me in so doing, I should not be deterred by the objections which have been interposed by Henry Jacobi, who claims to be a creditor of decedent. A creditor cannot as such make himself a party to a contest over the probate of a will (Menzies v. Pulbrook, 2 Curteis, 845; Elme v. DaCosta, 1 Phil., 173; Dabbs v. Chisman, 1 Phil., 155; Taff v. Hosmer, 14. Mich., 249). Besides, it is expressly provided by section 2514, subdivision 11 of the Code, that the expression 1C person interested,” where it is used in connection with an estate or fund, does not include creditors. And it is only “ persons interested,” who can become parties (Code, § 2617). But, even in the absence of any opposition on the part of a lawful contestant, I cannot grant this motion. There are well known limitations upon the authority of a court to enter a judgment nunc pro tunc. The party who asks it, in a case like the present, must show that he was absolutely entitled to its entry at the earlier date, and that the delay in entering it has been due, not to his own negligence, carelessness or misapprehension, but to some act or omission of the court (Fishmonger’s Co. v. Robertson, 3 Com. Bench, 970; Freeman v. Tranah, 12 Com. Bench, 406; Evans v. Rees, 12 Adol. & Ellis, 175; Gray v. Brignardello, 1 Wall., 627). Such is not the case here. At the time when an application was made for the preparation of letters of administration, no decree had been signed admitting the will to probate. And the Surrogate, until such decree was signed, had of course no authority to issue letters. The passing upon the sufficiency of evidence in support of an alleged will is a purely judicial act, which cannot be delegated by the court to any other person. Neither the applicant for letters nor his counsel was justified in assuming, in advance, the determination which the court would make in the premises. And no steps should have been taken to procure the letters until such determination was had. It does not appear that the depositions, which attest the due execution of the paper offered as a will, were even seen by the late Surrogate. And if they were, it is not to be presumed that, in the absence of jurats, he regarded them as satisfactory evidence to support a decree. If the alleged will were today, for the first time, offered for probate, these depositions would not, in their present condition, warrant my giving it admission. While I might feel justified in allowing the officer who administered the oaths to affix his jurat, the practical situation would remain unchanged. I cannot hold that, with these papers before him, even in their corrected form, the Surrogate would in November last have granted probate to this will, or that he ought to have done so. The motion to enter a decree nunc pro tunc is, therefore, denied.

The proofs should be again presented to the Surrogate, and if the instrument here, propounded is decreed to be the last will of decedent, new letters can be applied for, in behalf of the present administrator, whose claim thereto is declared by section 2643 of the Code to be paramount to that of any other person.

Ordered accordingly.  