In re the Probate of the Will of Thoms

286 A.D. 1146, 146 N.Y.S.2d 18, 1955 N.Y. App. Div. LEXIS 5436

Opinion

Memorandum: It appears without question that Janet Thoms Ingersoll, the pseudo-appellant, was declared incompetent to manage herself and her affairs by a court of competent jurisdiction in May, 1944, and that a committee was duly appointed. No claim is made that there has ever been an order declaring competency or restoration to the incompetent of her property and the management thereof. The Surrogate could do nothing but dismiss the petition of said adjudged incompetent. She was without authority or right to institute the proceeding (Matter of Deimer, 274 App. Div. 557) and the attorneys were without authority to appear for her (Matter of Brown, 131 Misc. 420). It follows that said Janet Thoms Ingersoll, as an adjudged incompetent, had no authority to take the appeal herein or to employ attorneys to do so. Technically, the appeal would be subject to dismissal upon motion by the respondent. In the absence of such motion, we deem it proper to affirm the order. All concur. (Appeal from an order of Monroe Surrogate’s Court dismissing the petition for the probate of the alleged ■will of decedent.) Present — McCurn, P. J., Vaughan, Kimball and Wheeler, JJ. [See 1 A D 2d 763.]