In re Phalen's Will
New York Supreme Court
Appeal from surrogate’s court, Hew York county. Charles J. Phalen presented his petition for the revocation of the probate of the will of James Phalen, deceased, and the executor, Edgar Lockwood, moved to dismiss the petition for the want of a necessary party, Mrs. Phalen, wife of the petitioner, and the petitioner moved to amend by making her a party.
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Appeal from surrogate’s court, Hew York county. Charles J. Phalen presented his petition for the revocation of the probate of the will of James Phalen, deceased, and the executor, Edgar Lockwood, moved to dismiss the petition for the want of a necessary party, Mrs. Phalen, wife of the petitioner, and the petitioner moved to amend by making her a party. The surrogate allowed the amendment, though more than a year had elapsed since the will was probated, and Catherine S. Phalen and other legatees appeal.
1Opinion of the CourtVan Brunt, P. J.
The order denying the motion to dismiss the petition is clearly not appealable, as whether the surrogate should or should not, upon *409the return of the citations, decline to grant the relief asked by the petitioner, is a matter to be then determined, and, although the surrogate might upon sufficient facts shown have dismissed the application before such return-day, his refusal to do so is in no way a final adjudication upon the matter upon which an appeal could be taken. The appeal from that part of the order amending the petition, and from the order directing the issuance of a supplemental…
2Cited by6 opinions
- San Francisco Protestant Orphan Asylum v. Superior Court of Santa Clara CountyCalifornia Supreme Court · 1897
- In re Bradley's WillNew York Supreme Court · 1893
- Estate of Dalton, Superior Court of California, County of San Francisco1899
- In re Lowenguth's EstateAppellate Division of the Supreme Court of the State of New York · 1906
- In re the Estate of ToppingNew York Surrogate's Court · 1890
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