In re the Estate of Walton

New York Surrogate's Court

In re the Estate of Walton

3 Mills Surr. 278, 38 Misc. 723, 78 N.Y.S. 296

DecidedOctober 15, 1902

StatusPublished

This text of 3 Mills Surr. 278 (In re the Estate of Walton) 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 Walton, 3 Mills Surr. 278, 38 Misc. 723, 78 N.Y.S. 296 (N.Y. Super. Ct. 1902).

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Opinion

Fitzgerald, S.

The moving party is the executrix of the will of her deceased husband. He was the representative of an estate of which his widow is now the administratrix, c. t. a. She is accounting as executrix of her husband’s estate, and to such! accounting she has made parties certain persons, one of whom is interested in the estate which the accountant represents as administratrix. She now moves to strike from the proceeding the names of these persons and the objections which one of them has interposed. The motion is based on the claim that the persons mentioned are unnecessary and improper parties to the proceeding. The claim, as to the party who has filed the objections, is untenable. She is undoubtedly a proper party, as the estate in which she is interested is entitled to be represented upon the accounting for the protection of its rights and interests, and by a person not having, $s has the moving party, antagonistic rights and interests. Matter of Daniel Quinn, 30 N. Y. St. Repr. 212; Bunnell v. Ranney, 2 Dem. 327; Solomons v. Kursheedt, 3 id. 310-311. The pendency of the accounting proceedings brought under sections 2606 and 2728 of the Code of Civil procedure, to which both the moving party and the objectant are parties, affords no sufficient reason or justification for striking out the name of the latter or the objections which she has filed. The objections are allowed to stand for the present, but no trial of the same shall be had until the termination of the proceedings under section 2606, when such application may be made for their disposition as the circumstances may seem to warrant. The application so far as it affects the objectant, is denied. As to the children of the applicant, it is granted.

Decreed accordingly.

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Fitzgerald, S.

The moving party is the executrix of the will of her deceased husband. He was the representative of an estate of which his widow is now the administratrix, c. t. a. She is accounting as executrix of her husband’s estate, and to such! accounting she has made parties certain persons, one of whom is interested in the estate which the accountant represents as administratrix. She now moves to strike from the proceeding the names of these persons and the objections which one of them has interposed. The motion is based on the claim that the persons mentioned are unnecessary and improper parties to the proceeding. The claim, as to the party who has filed the objections, is untenable. She is undoubtedly a proper party, as the estate in which she is interested is entitled to be represented upon the accounting for the protection of its rights and interests, and by a person not having, $s has the moving party, antagonistic rights and interests. Matter of Daniel Quinn, 30 N. Y. St. Repr. 212; Bunnell v. Ranney, 2 Dem. 327; Solomons v. Kursheedt, 3 id. 310-311. The pendency of the accounting proceedings brought under sections 2606 and 2728 of the Code of Civil procedure, to which both the moving party and the objectant are parties, affords no sufficient reason or justification for striking out the name of the latter or the objections which she has filed. The objections are allowed to stand for the present, but no trial of the same shall be had until the termination of the proceedings under section 2606, when such application may be made for their disposition as the circumstances may seem to warrant. The application so far as it affects the objectant, is denied. As to the children of the applicant, it is granted.

Decreed accordingly.

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Bluebook (online)

3 Mills Surr. 278, 38 Misc. 723, 78 N.Y.S. 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-walton-nysurct-1902.