In re the Estate of Hendy

New York Surrogate's Court

In re the Estate of Hendy

37 Misc. 2d 217, 234 N.Y.S.2d 162, 1962 N.Y. Misc. LEXIS 2250

DecidedNovember 26, 1962

StatusPublished

This text of 37 Misc. 2d 217 (In re the Estate of Hendy) 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 Estate of Hendy, 37 Misc. 2d 217, 234 N.Y.S.2d 162, 1962 N.Y. Misc. LEXIS 2250 (N.Y. Super. Ct. 1962).

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Opinion

John D. Bennett, S.

This is a probate proceeding in which certain unknown heirs were served by publication under an order dated May 8,1961. Publication was made in one paper on May 11,18, 25 and June 1,1961, and in the other on May 17, 24, 31 and June 7,1961. The return date of the citation so published was June 21,1961.

The affidavit on which the order of publication was obtained mentions a sister of the deceased residing in Bournemouth, Hants, England. An affidavit of the family tree was made by such sister on June 9, 1961, and certified by the Vice Consul of the United States of America at Southampton, England, on June 12, 1961. The papers are silent as to when this affidavit was received by the petitioner but the special guardian appointed June 21,1961, mentions having examined it in his report of July 28, 1961.

If no information as to names and addresses of “ unknown ” heirs had been received before the return date of the citation and the “ unknown ” heirs were in default, a novel question would have been presented as to whether such persons whose names and addresses were ascertained before the decree was signed would have to be made parties to the proceeding by supplemental citation.

However, that question is not presented on the record now before the court. Here, before the return of the citation, the [218]*218petitioner apparently had the information set forth in the affidavit sworn to June 9,1961, or knew such information was being obtained and on its way to him. Under such circumstances this court is of the opinion that the default of such persons as ‘ ‘ unknowns ’ ’ should not be accepted by the court but that supplemental citation should issue to them to give them an opportunity to appear and if they so desire, contest the probate of the propounded instrument.

This court is of the opinion that such persons are not protected by a special guardian appointed June 21, 1961 for unknowns, as at that time those persons were not unknowns within the meaning of the statute.

The alternate relief requested by the petitioner that supplemental citation issue and be published is granted. The proposed supplemental citation and order of service of citation submitted will be examined and if found correct, completed and signed.

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John D. Bennett, S.

This is a probate proceeding in which certain unknown heirs were served by publication under an order dated May 8,1961. Publication was made in one paper on May 11,18, 25 and June 1,1961, and in the other on May 17, 24, 31 and June 7,1961. The return date of the citation so published was June 21,1961.

The affidavit on which the order of publication was obtained mentions a sister of the deceased residing in Bournemouth, Hants, England. An affidavit of the family tree was made by such sister on June 9, 1961, and certified by the Vice Consul of the United States of America at Southampton, England, on June 12, 1961. The papers are silent as to when this affidavit was received by the petitioner but the special guardian appointed June 21,1961, mentions having examined it in his report of July 28, 1961.

If no information as to names and addresses of “ unknown ” heirs had been received before the return date of the citation and the “ unknown ” heirs were in default, a novel question would have been presented as to whether such persons whose names and addresses were ascertained before the decree was signed would have to be made parties to the proceeding by supplemental citation.

However, that question is not presented on the record now before the court. Here, before the return of the citation, the [218]*218petitioner apparently had the information set forth in the affidavit sworn to June 9,1961, or knew such information was being obtained and on its way to him. Under such circumstances this court is of the opinion that the default of such persons as ‘ ‘ unknowns ’ ’ should not be accepted by the court but that supplemental citation should issue to them to give them an opportunity to appear and if they so desire, contest the probate of the propounded instrument.

This court is of the opinion that such persons are not protected by a special guardian appointed June 21, 1961 for unknowns, as at that time those persons were not unknowns within the meaning of the statute.

The alternate relief requested by the petitioner that supplemental citation issue and be published is granted. The proposed supplemental citation and order of service of citation submitted will be examined and if found correct, completed and signed.

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Bluebook (online)

37 Misc. 2d 217, 234 N.Y.S.2d 162, 1962 N.Y. Misc. LEXIS 2250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-hendy-nysurct-1962.