
    MARVIN against MARVIN.
    
      [No. 1 of this name.]
    
    
      Court of Appeals,
    
    
      February, 1871.
    Bond on Appeal ebom Subrogate.—Amendment.— Waiver of right to Appeal. —Power of Surrogate to Award Costs.—Necessary Parties to Probate of Will.
    The bond given on appeal to the supreme court from the .order of the surrogate, under 3 Rev. Stat., 610, § 108, should be to the respondent alone and not in the alternative, to the people of the State or to the respondent.
    A defect in a bond given to secure costs on appeal, is one which may be amended by the court, and this may be done on the hearing of the respondent’s motion to dismiss the appeal on the ground of such defect.
    
    Where an order was granted dismissing an appeal, on condition that the respondent should consent to a modification of the decree appealed from, and pay costs of the motion, and he accordingly consented and paid costs, which were accepted by the appellant, ■—-Held, that the latter had thereby waived his right to appeal from the order of dismissal.
    
    Legatees may intervene in the proceedings for the probate of a will before the surrogate, and upon an appeal from his order; but if they do not intervene, and a final judgment is rendered declaring the invalidity of the instrument propounded as a will, they cease to be interested parties, and cannot appeal from an order of the surrogate ordering the annulment of the record and awarding costs \ against the executor and directing him to file an inventory of the intestate’s effects which have come into his hands. .The executor then represents them, and they are bound by his acts.
    An order of the surrogate under 3 Rev. Stat., 67, § 62, directing payment of costs and expenses of contesting a will, is not reviewable.
    
    
      Appeal from an order.
    The facts of the case are as follows : On March 8, 1864, the will of Sarah L. Marvin, in which Le Grand Marvin was named as executor, was admitted to probate by the surrogate of Erie county. George L. Marvin, one of the heirs at law of the deceased, contested the probate and appealed to the supreme court, where the will was declared void, and the surrogate directed to annul the record and probate of the alleged will. On appeal, the judgment was affirmed by the court of appeals, and the remittitur from that court having been filed in the supreme court, and judgment having been had thereupon, the surrogate decreed the annulment and revocation of the record and probate of the will, and decreed the payment by the proponent, to the contestant, of all the costs of the proceedings, reserving, however, for a future hearing, the question whether they should be paid by him personally, of charged on the estate. He also ordered the proponent to file an inventory of all the goods, &c., of the intestate, which had come into his hands, stating, according to his knowledge, information and belief, what had become of them. From this decree, Le Grand Marvin (executor, &c.), Francis G. Lockwood (trustee named in the alleged will), and Anna Savage and Jane Lockwood (legatees), appealed to the supreme court and gave a bond for costs of the appeal. That part of the penal clause which is material to the decision, was in the following form:
    ‘ ‘ Supreme Court.
    
    
      “ Know all men by these presents: That we, Edmund B. Vedder, and Charles E. Shepard, of said city, are held and firmly bound unto the people of the State of JVew YorJc, also to George L. Marvin, of Buffalo city, &c. ”
    
      The condition was, “that if said appellants shall diligently prosecute such appeal, and pay all costs that shall be adjudged against them in the event of their failure to obtain a reversal of the decision so appealed from, then,” &c.
    The respondent moved at general term for a dismissal of the appeal, on the ground, among others, that a proper bond had not been given. The motion was granted, on condition that the respondent should, within ten days, file with the clerk of the court a stipulation that the decree appealed from be modified by striking out all relating to the inventory, and that he should pay ten dollars costs of the motion. The respondent stipulated, and paid costs accordingly, and the appellants appealed to the court of appeals.
    
      John Ganson, for proponents and appellants.
    
      Sherman S Rogers, for objector and respondent.
    I. The order is not appealable.
    II. None of the appellants, except Le Grand Marvin, had any standing in the surrogate’s court, nor could they appeal .from his decree.
    III. So far as the decree of the surrogate followed the' judgment of the supreme court, it was not appealable. So far as it directed the payment to George L. Marvin, it was purely discretionary, and not the subject of review.
    IV. No sufficient bond was given on appeal. The bond should have been to the respondent, or the State of New York.
    V. The order appealed from having been conditional upon the payment of costs, and the costs having been received by Le Grand Marvin, he thereby waived his right to appeal (Lupton v. Jewett, 1 Robt., 639 ; Bennett v. Van Syckel, 18 N. Y., 481).
    
      
       As to the stay of proceedings effected by such an appeal, see Laws of 1871, ch. 603.
    
    
      
      Compare Knapp v. Brown, p. 118 of this vol.
    
    
      
      Compare Downing v. Marshall, 37 N. Y., 180; Rose v. Rose, 28 N. Y., 184.
    
   By the Court.—Grover, J.

The bond given upon the appeal to the supreme court from the order of the surrogate was in the alternative, to the people or to the respondent. This was not such a bond as the statute requires. It should have been a bond to the respondent (2 Rev. Stat. 610, § 108). The court were authorized to dismiss the appeal upon this ground, and had they done so unqualifiedly, with costs, no error would have been committed. The defect was one clearly amendable, and the court could exercise this power of amendment upon the respondent’s motion to dismiss the appeal; and from the order made, they must be assumed to have determined to grant an amendment, if there was anything in the order which the appellants were entitled to have reviewed by the court, as the motion to dismiss the appeal was denied, unless the respondent within a specified time filed a stipulation modifying the same by striking out a part thereof, and paid to the executor, one of the appellants, ten dollars, costs of opposing the motion. The respondent made the requisite stipulation, and paid the costs, which were accepted by the executor. This acceptance by the latter, of these costs, was a waiver of his right of appeal from the order (Bennett v. Van Syckel, 18 N. Y., 481).

The other appellants had no right of appeal from the order. During the pendency of the proceedings for the probate of the will before the surrogate, they might-have intervened as parties, for the purpose of protecting their interest as legatees, and after the determination of the surrogate, admitting the will to probate, might have so intervened in the proceedings upon the appeal therefrom (Foster v. Foster, 7 Paige, 48). But whether they would so intervene, was a matter for their determination. They were in no respect necessary parties to a final determination of the question as to the validity of the instrument propounded as a will. The executor who instituted the proceedings for the probate, represented the interest of all legatees, and they were bound by his acts, not having in any manner attempted to intervene until after the rendition of final judgment, determining that the instrument was not valid as a will. By this judgment they were concluded, and could not thereafter assert any rights under it as a will.

They had no interest whatever in the order made by the surrogate, and no right of appeal therefrom. The appeal was, therefore, properly dismissed as to them. There was nothing in the order as modified by the court, previous to the dismissal of the appeal, of which the executor could compiain.

Final judgment having been given against the validity of the will, the order revoked the record and probate thereof, as required by statute, and determined that the executor who had maintained the validity, should pay to the respondent the costs and expenses of the proceedings, reserving the question whether such costs and expenses should be paid, by the executor personally, or out of the estate, for future determination.

The statute (2 Rev. Stat., 67, § 62) gave to the surrogate the power of determining this question as to the payment of the costs and expenses, and vested him with a discretion therein, which is not made reviewable by any other court.

From the knowledge I have had officially of the litigation in various stages, I entertain no doubt that the surrogate, if the case is fairly presented to him, will determine that the costs and expenses shall be paid from the estate.

The order appealed from must be affirmed, with costs.

Order accordingly.  