In re the Probate of the Will of Snyder

284 A.D. 1003, 135 N.Y.S.2d 370, 1954 N.Y. App. Div. LEXIS 4363

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1954
• Status: Published

Opinion

Appellant has appealed from an order of Tompkins County Surrogate’s Court requiring him, as a nonresident of the State of New York, to provide security for costs in the amount of $500. He had filed objections to the probate of the will of his deceased uncle, Frank G. Snyder. Section 282 of the Surrogate’s Court Act provides that, in a proceeding wherein issue is raised by an objection by or in behalf of a nonresident of the State of New York, the proponent shall be entitled, in the discretion of the Surrogate, to have such objeetant give such security. The section was undoubtedly designed as a curb on “ ‘ strike ’ ” will contests. (Matter of Meyer, 148 Mise. 901, 902, citing report of Surrogate Revision Commission [1914].) Though not unanimous, there is some authority suggesting that an application to require security should not be granted unless it appears that the objeetant possesses no interest in the estate to which resort could be had in the event of his nonsueeess and that the objection is without substantial merit. (Matter of Bray, 182 Mise. 623; Matter of Koelseh, 182 Mise. 625; 1 Bradford Butler on New York Surrogate Law and Practice [1941 ed.], § 476.) Objeetant has no interest in the estate to which resort could be had in the event of his nonsuccess. The objections and affidavits before the Surrogate on this motion were so inconclusive on the question of the substantial merit of objectant’s claim that it may not be said that granting the order appealed from was an abuse of discretion on the part of the court below. Order unanimously affirmed, with costs to abide the event. Present — Bergan, J. P., Coon, Halpern, Imrie and Zeller, JJ.