
    In the Matter of the Estate of Odell, Deceased.
    (Surrogate’s Court—Westchester County,
    December, 1892.)
    Where it is discovered before the probate of a will that a necessary party has not been cited, the proceeding will be suspended until he is brought in.
    P., an heir at law and next of kin of the testatrix, and not named in her will, was duly cited to attend the settlement of the executor’s account. He presented a petition alleging that he had.not been named in the petition for the probate of the will, nor in the citation, nor in any way notified of the proceeding, and prayed for a decree revoking the probate of the will, and that the same be decreed not to be testatrix’s will. Held, that the prayer for relief was too broad and should be denied, but that the decree admitting the will to probate should be opened for the purpose of making the petitioner a party so that he might file objections against the validity of the will, if any.
    The estate of testatrix, consisted of both real and personal property, and with the exception of one small house and lot, all the realty was directed by the will to be sold. The executors had sold the same and distributed most of it in good faith. Held, that if the will was to stand, the proceeds of the sale of the realty became personalty, otherwise not; and that for the purpose of petitioner’s motion that portion of the estate ’ must be regarded as realty and his motion denied in the discretion of the court; but as to the personalty, the petitioner was entitled as of right to an order opening the decree admitting the will to probate. Where a decree admitting a will to probate is opened for the purpose of allowing a party who was not cited to attend the probate to present his objections against the validity of the will, if any, the executors must reprove the due execution, and any person having an interest in sustaining it, will be allowed to aid them.
    The deceased departed this life about the first day of June, 1889. In July following, her last will and codicil thereto were admitted to probate, relating to both real and personal estate, and letters testamentary were duly issued to Walter Caswell and William W. Bracket, the executors therein named. John W. Purdy, residing then and still in the state of Arkansas, was an heir at law and next of kin of the deceased. He was not named in the petition for probate, nor in the citation, nor in any way notified of the proceeding. The executors recently commenced a proceeding for a judicial settlement of their accounts, and duly cited Purdy to attend the same, and he now presents a petition stating the foregoing facts, and praying for a decree setting aside the prohate of the will, that the same be decreed not to be her will, that the probate thereof be revoked and annulled, etc.
    The will operates an equitable conversion of all testatrix’s realty, except one small house and lot, into legal assets. It is alleged by the executors that such realty has been actually converted and that nearly seven-eights of the estate, amounting to about $93,000, has been paid to the legatees. Purdy, the petitioner, was not named in the will or codicil.
    
      Robert C. Taylor, for petitioner.
    
      Mitchel Levy, for executors.
   Coffin, S.

The prayer of the petition for the relief sought, is too broad. On the facts stated it seems the court should have been asked merely to open the decree admitting the will to probate so that the petitioner may have an opportunity of being heard in opposition. The decree is conclusive against all who were cited, and should it be opened for the purpose of making the petitioner a party so that he may file objections, it will be unnecessary to cite those who have already been cited. The court had complete jurisdiction of the subject and of those persons, but not of the petitioner. Ho explanation is given as to why he was not cited; perhaps he was supposed to be dead, or that the executors were uninformed as to his relationship to the deceased. However that may be, the fact that he is an heir at law and next of kin is not disputed.

Of course, had the deceased died intestate, the petitioner would have been entitled to his share of her estate, and he cannot be deprived of his right by an adjudication in a proceeding to which he was not a party. Had he been cited, he would have had a right to show, if he could, that the will was invalid on any proper ground. He has- not had such opportunity, and it should be accorded to him. It is always the practice before probate, where it is discovered that a necessary party has not been cited, to suspend the proceeding until he is brought in, and no good reason is discovered why, where such a person who was ignorant of the proceeding, should not be made a party and stand on precisely the same ground as to his rights, as he would have done if made a party originally.

It is claimed on behalf of the executors, that it is discretionary with the court to open the decree or not, and as a strong reason why it should not be done in this case is, that the bulk of the estate has already been distributed, in good faith, by the executors. It can be regarded as discretionary only so far as the claim is confined to realty, as in the case of Bailey v. Stewart, 2 Redf. 212; Bailey v. Hilton, 14 Hun, 3, where it was held that the discretion was properly exercised as the petitioner had an ample remedy at law to recover his interest in the realty. What, if any, remedy there would be in this case, to recover the share of the personalty already distributed in good faith, it is not necessary to inquire. But it is claimed on behalf of the petitioner that inasmuch as the will directs a sale of the realty, the proceeds became personalty. This would be true if the will is to stand, and is not true if it should, for any reason, be overthrown by any effort of the petitioner, and his prayer is that it be declared not to be the last will and testament of the deceased. So far as this motion is concerned, the portion of the realty ordered by the will to be sold, must, thérefore, be regarded as real estate, but as the estate consisted of both real and personal, it would seem that there is no ground for the exercise of discretion as to the personalty, and that as far as the latter is concerned, the petitioner is absolutely entitled to an order opening the decree. He cannot be deprived of property rights given him by statute, without being afforded an opportunity to be heard.

On behalf of the executors, it is contended that no sufficient cause ” is shown, as is required by subdivision 6, of section 2481 of the Code. That expression, however, seems to relate only to the granting of a new trial or a new hearing for fraud, etc., and not at all to opening, etc., of a decree. But while this may he so, abundant cause is shown in the fact that a person who was entitled to be cited was not made a party and had no knowledge or notice of a proceeding which was calculated to deprive him of his possible rights as heir at law and next of kin. This is regarded as quite sufficient cause.”

As some of the estate consisted of realty, yet a considerable portion, to wit, about $65,000, was personal property as to which the petitioner has a clear right to an order opening the decree, it does not seem practicable or proper to open the door half way, and hear him so far as the latter is concerned, and deny him a hearing as to the former, in the exercise of a permissible discretion.

The decree will, therefore, be opened so far as the petitioner is concerned, and as he is now before the court, he must forthwith file his allegations against the validity of the will and codicil, if he have any, and then the executors must reprove the same by the subscribing witnesses, and such proceedings be had as are usual in the ordinary cases of probate. While it will be the duty of the executors to endeavor to sustain the validity of the will and codicil, any person, having an interest in supporting them, will be allowed to aid them in that effort.

The prayer of the petition that the will be decreed not to be the last will of the deceased, and that the probate thereof be revoked and annulled, is denied ; but the decree will be opened for the purpose above indicated, and an order entered accordingly.  