In re Dunn
New York Surrogate's Court
James L. Montgomery, in behalf of himself and others claiming to be heirs-at-law and next of kin of the decedent, presented a petition alleging that they were such heirs, etc.; that they were not cited or in any way made parties to the proceeding instituted to prove the will of the decedent; that such will had been admitted to probate, and that, on an appeal, the decree so admitting the same was reversed, and a trial of the issues relating thereto, directed to be had at the…
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James L. Montgomery, in behalf of himself and others claiming to be heirs-at-law and next of kin of the decedent, presented a petition alleging that they were such heirs, etc.; that they were not cited or in any way made parties to the proceeding instituted to prove the will of the decedent; that such will had been admitted to probate, and that, on an appeal, the decree so admitting the same was reversed, and a trial of the issues relating thereto, directed to be had at the Westchester circuit; that, on such trial, a verdict was given in favor of the proponent, from the judgment entered upon…
1Opinion of the Court
The Surrogate.
Doubtless, the petitioner intended to pray for an order allowing the petitioner and those whom he represents to intervene and become parties to the action now pending, or parties to the proceeding which was pending in this court. Believing such to be the order sought, and regarding it as having been properly prayed for, I think this court has no power to grant it. It was held in Foster v. Tyler (7 Paige, 48), that, in such case, the person desiring to be made a party must apply to the court in which the proceeding was, at the time, pending. *296This was followed in Marvin v. Marvin…
2Cases cited2 opinions
- Foster v. FosterNew York Court of Chancery · 1838
- People v. AmbrechtNew York Supreme Court · 1859