Lush v. Alburtis

1 Bradf. 456

• Court: New York Surrogate's Court
• Decided: February 15, 1851
• Status: Published

Opinion

The Surrogate.

The petition for probate states, that the decedent was a widow, and that her sister was her only next of kin. The will was contested, and in the course of the testimony it appeared that the decedent was a married woman. The question now arises, whether the husband should be cited to attend the probate. The Bevised Statutes require, on an application to prove a will of personalty, that the Surrogate should ascertain by satisfactory evidence “the names and places of residence of the widow and next of Mn of the testator,” and thereupon issue a citation “requiring the proper person, at such time and place as shall be therein mentioned, to appear and attend the probate of the will.” (2 H. 3d eci., pp. 126, 127, §§ 48, 50.) These provisions manifestly do not contemplate the probate of the will of a married woman, and for the. very sufficient reason, that at that time a married woman could not make a proper will. Since then, by virtue of the acts of 1848 and 1849, authorizing married women to take, hold, convey and devise property, they may make valid wills ; but no special provisions having been enacted touching the probate thereof, it is necessary to fall back upon the principles which should regulate Courts in their mode of procedure. It is an elementary rule, that no person should be affected as to his property or rights without being made a party to the proceeding, or having proper notice of its prosecution, so that he may appear and intervene fpr his interest. In the matter of the estate of Ellen Golden, deceased, I decided, that notwithstanding the acts of 1848 and 1849, the surplus of the personal estate of a married woman dying intestate and leaving her husband surviving, after the payment of debts belonged to her husband, or his personal representatives. It follows in such a case, that where a will is presented for probate, the husband is the only party in interest to oppose, as he is the only person who would take, provided there were no will. The relatives of the deceased wife have no interest, for nothing will pass to them in case of intestacy. It would be absurd, therefore, to cite the next of kin who have no interest, and not to cite the husband who takes the whole surplus in case of intestacy. I have no objection against citing the next of kin in such cases, though it seems to be entirely unnecessary. But it would certainly be wrong to proceed to probate without notice to the husband. The fact that the decedent was a married woman having been discovered after the examination of several witnesses, and before the evidence was closed, it becomes necessary to suspend further proceedings. A new citation must be issued to the husband, and the matter will stand adjourned over to the return day of the citation.