Whitney v. Britton

16 A.D. 457

Opinion

Parker, J.:

The plaintiff, one of the two children of Elizabeth Lee, supposing that section 2653a of the Code authorized her to maintain a suit for the purpose of determining the validity of the will of said Elizabeth Lee, which devised and bequeathed to the defendant all the estate of the testatrix, commenced this suit and prosecuted it to judgment.

In the meantime it has been determined that a person who does not take under a will is not interested in it within the meaning of that section. (Lewis v. Cook, 150 N. Y. 163.) It follows that the judgment must be reversed and the complaint dismissed, with costs, on the ground that the plaintiff had no legal capacity to sue.

Yan Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.

Judgment reversed and the complaint dismissed, with costs, on the ground that the plaintiff had no legal capacity to sue.