In re the Contested Will of Evans

New York Surrogate's Court

In re the Contested Will of Evans

2 Mills Surr. 104, 33 Misc. 671, 68 N.Y.S. 937

DecidedJanuary 15, 1901

StatusPublished

This text of 2 Mills Surr. 104 (In re the Contested Will of Evans) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Contested Will of Evans, 2 Mills Surr. 104, 33 Misc. 671, 68 N.Y.S. 937 (N.Y. Super. Ct. 1901).

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Opinion

Thojias, S.

— 'Tbe objections filed to tbe probate of tbe will bave been withdrawn upon tbe consent of tbe party and under an order made contrary to tbe insistence of Mr. Keane, bis attorney, wbo claimed a right to continue the contest in tbe assertion of a lien. From this order an appeal has been taken by Mr. Keane; be has given tbe undertaking required to perfect tbe appeal, and be now argues that tbe proceeding for the probate of tbe will is stayed. In this view I cannot concur. Mr. Keane is not a party to tbe proceeding; be is not named either in tbe petition or tbe citation; be has never appeared except as attorney for certain of tbe parties in interest; and be has not by any order of this court been permitted to intervene and become a party. His appeal to tbe Appellate Division is only permissible if be is entitled by law to be beard in tbe proceeding for probate on bis application. If be is so entitled by law to be beard be may intervene an appeal; if be is not so entitled by law to be beard be has no such right of appeal, and an attempted appeal is a nullity and cannot effect a stay of proceedings. Code Civ. Pro., §§ 2569, 2584. The question as to this right to be beard is now before me, and it is my plain duty to pass upon it. I may decide wrongly, and, in that event, I may make an order that will ultimately require to be rescinded, but this is an incident to all judicial action made subject to appellate review. I have already determined against tbe contention [106]*106of the attorney as to bis legal right to a hearing in this proceeding, and, seeing no just cause for changing my ruling, I adhere to it. On the ground, therefore, that on the facts alleged by Mr. Keane he has no legal right to a hearing in the proceeding, I conclude that bis appeal, on the argument of which he will contend to the contrary, is not a stay of the proceeding. An. order will be made that the matter proceed, without regard to the appeal and as if no objection had been filed.

Decreed accordingly.

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Thojias, S.

— 'Tbe objections filed to tbe probate of tbe will bave been withdrawn upon tbe consent of tbe party and under an order made contrary to tbe insistence of Mr. Keane, bis attorney, wbo claimed a right to continue the contest in tbe assertion of a lien. From this order an appeal has been taken by Mr. Keane; be has given tbe undertaking required to perfect tbe appeal, and be now argues that tbe proceeding for the probate of tbe will is stayed. In this view I cannot concur. Mr. Keane is not a party to tbe proceeding; be is not named either in tbe petition or tbe citation; be has never appeared except as attorney for certain of tbe parties in interest; and be has not by any order of this court been permitted to intervene and become a party. His appeal to tbe Appellate Division is only permissible if be is entitled by law to be beard in tbe proceeding for probate on bis application. If be is so entitled by law to be beard be may intervene an appeal; if be is not so entitled by law to be beard be has no such right of appeal, and an attempted appeal is a nullity and cannot effect a stay of proceedings. Code Civ. Pro., §§ 2569, 2584. The question as to this right to be beard is now before me, and it is my plain duty to pass upon it. I may decide wrongly, and, in that event, I may make an order that will ultimately require to be rescinded, but this is an incident to all judicial action made subject to appellate review. I have already determined against tbe contention [106]*106of the attorney as to bis legal right to a hearing in this proceeding, and, seeing no just cause for changing my ruling, I adhere to it. On the ground, therefore, that on the facts alleged by Mr. Keane he has no legal right to a hearing in the proceeding, I conclude that bis appeal, on the argument of which he will contend to the contrary, is not a stay of the proceeding. An. order will be made that the matter proceed, without regard to the appeal and as if no objection had been filed.

Decreed accordingly.

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Bluebook (online)

2 Mills Surr. 104, 33 Misc. 671, 68 N.Y.S. 937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-contested-will-of-evans-nysurct-1901.