Walsh v. Ryan

The Surrogate. The executor in this case propounds a will and two codicils for probate. Ann Eyan, a legatee named in the will, claims a right to intervene for her interest, and oppose the proof of the first codicil, which revokes the legacy given her by the will. The ground of contestation is alleged fraud and undue influence. Our statute gives no right to any party to appear and contest the probate of a will, except the widow, heirs, and next of kin. This is, however, undoubtedly ón the principle, that these are all the parties interested against admitting the will, being the persons who would succeed to the estate, in case of intestacy. If a will of admitted validity gives legacies which by a codicil are taken away, it is very apparent that the legatee becomes interested, to the extent of the legacy, against the proof of the codicil; and if there be ground for contesting the latter, there seems to be no reason why the legatee should not be permitted to come in and oppose. It is true, that formally speaking, the executor represents all parties in interest under a will, adversely to the heirs and next of kin, but he is not the 434 only person who can apply to have the will proved. The words of the statute are, ££ The executor, devisee, or legatee named in the last will, or any person interested in the estate, may have such will proved before the proper Surrogate.” (2 R. S., 3d ed., p. 126, §47.) The right of appeal from the decision of the Surrogate is also expressly given to a legatee. (2 R. S. p. 130, § 70.) It is competent, therefore, for a'legatee to make the application for proba,te, and even where it has been already made by the executor, to intervene for the purpose of having the will proved and his interests protected. By the English rule, a legatee cannot set up a will after it has been litigated between the executor and next of kin, and pronounced against, unless he can show an agreement to set aside the will by fraud or collusion. But if he is afraid the executor will not do justice, he may intervene for his interest pending a suit. (Lewis vs. Bulkley, 1 Cas. Temp. Lee, p. 513, and 190, notes; Bittleston vs. Clark, 2 Id., 250; Hayle vs. Hasted, 1 Curt., 236; Mansfield vs. Shaw, 3 Phill., 22; Urquhart vs. Fricker, 3 Add., 58.) Of course, it follows that if the legatee can come in to have the instrument under which he claims, established, he has the right to oppose the probate of any other alleged will or codicil, which, if admitted, would conflict with his interest. (Kipping vs. Ash, 1 Robert., 270.) If the legatee, therefore, files an application for the probate of the will, she must be permitted to intervene, and to oppose the proof of the codicil. ■