In re the Probate of the Will of Salomon

28 Misc. 2d 634, 215 N.Y.S.2d 990, 1961 N.Y. Misc. LEXIS 2743

• Court: New York Surrogate's Court
• Decided: June 14, 1961
• Status: Published

Opinion

John D. Bennett, S.

Motion made by proponent in this contested probate. proceeding for an order requiring the contestant, a nonresident, to file security for costs pursuant to section 282 of the Surrogate’s Court Act, in the amount of $1,000.

Although ultimately it is discretionary with.the court whether to require security from a nonresident^ elements considered by the courts on similar applications are the nonresident’s lack of any interest in the estate to' which resort could be had in the event costs were imposed, and a consideration of whether there is any substantial merit to the objections as filed (Matter of Snyder, 284 App. Div. 1003).

According to the petitioner, the contestant is given no outright bequest under the propounded instrument but is merely a beneficiary of a trust where the payment of both income and principal is discretionary. The affidavits submitted are inconclusive on the question of the substantial merit, or lack thereof, of the objections.

Under all the circumstances, and in the court’s discretion, the motion is granted and the contestant is required to file an undertaking in the amount of $250 as security for possible costs.

The notice of appearance filed by the special guardian, appointed in the Supreme Court to protect the rights of an incompetent interested in this estate, will be stricken. The order appointing him specifically circumscribes his authority to the incompetency proceeding itself (see, also, Guardian Ad Litem-Powers, Ann. 115 A. L. B. 571).