In re Phalen's Will
New York Surrogate's Court
Petition by C. J. Phalen to revoke the probate of the will of James Phalen,. deceased. The executor, Edgar Lockwood, moved to dismiss the petition for want of parties, which was granted, and the plaintiff moved to amend the petition by bringing the omitted party.
1Opinion of the Court
Ransom, S.
It is only necessary, for the purpose of deciding this motion, to consider one proposition. The petition for revocation of probate omits one-party necessary to be brought in under the Code, namely, the petitioner’s own wife, who is named in the will as a legatee. It is now too late to remedy this defect. Although the case presented by the petitioner for revocation on this, application appeals strongly to the sympathy of the court, still, the jurisdiction in this regard being purely statutory, nothing remains but to dismiss the-petition. See Fountain v. Carter, 2 Dem. Sur. 313; In re…
2Cases cited3 opinions
- In Re the Probate of the Will of GouraudNew York Court of Appeals · 1884
- Fountain v. CarterNew York Surrogate's Court · 1884
- Pryer v. ClappNew York Surrogate's Court · 1883