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Matter of Rose

Surrogate's Court of the City of New York, New York County
May 21, 1945
185 Misc. 39 (N.Y. Misc. 1945)

Summary

In Matter of Rose (185 Misc. 39, affd. 269 A.D. 933), the court held that a person could not be deprived of a right to contest an instrument offered as decedent's will (pp. 39-40) "merely because a mathematical computation on an actuarial basis might show him to be better served by the admission of the propounded paper.

Summary of this case from Matter of Ballmann

Opinion

May 21, 1945.

Samuel M. Lane for Hiram C. Todd, proponent.

Robert McCormack for Preston M. Neilson, proponent.

William T. Van Alstyne for Henry A. Alker, contestant.

James N. Vaughan, special guardian for Charity E. Alker and others, infants, contestants.


The motion to dismiss the objections of the special guardian is in all respects denied. The reasons for such disposition are in part stated in the decision on a companion motion released simultaneously herewith ( 185 Misc. 33). In addition to such reasons the motion must fail because the basis to it appears to be an actuarial computation which was so difficult to state that it was erroneously stated (as the moving parties concede) in material respects and the resulting error depreciates the contention of the moving parties though they do not admit that the error destroys their contention. The court should not exclude any party merely because a mathematical computation on an actuarial basis might show him to be better served by the admission of the propounded paper. The interest of the litigant cannot be measured on an actuarial basis but must be computed on the basis most favorable to him with every contingency resolved in his favor. As was said by Surrogate COFFIN in Matter of Greeley's Will (15 Abb. Prac. [N.S.] 393, 395): "Any interest, however slight, and even, it seems, the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper * * *."

But another and controlling reason requires denial of the motion. The wards of the special guardian will be prejudiced under the propounded paper as compared to the prior papers if any additional issue be born to their uncle. The possibility of such issue is always present and can never be denied so long as the uncle lives. That prospect of harm to the wards of the special guardian under the propounded paper by reason of this possible diminution of their interests entitles the special guardian to prosecute his objections.

Submit, on notice, order accordingly.


Summaries of

Matter of Rose

Surrogate's Court of the City of New York, New York County
May 21, 1945
185 Misc. 39 (N.Y. Misc. 1945)

In Matter of Rose (185 Misc. 39, affd. 269 A.D. 933), the court held that a person could not be deprived of a right to contest an instrument offered as decedent's will (pp. 39-40) "merely because a mathematical computation on an actuarial basis might show him to be better served by the admission of the propounded paper.

Summary of this case from Matter of Ballmann

In Matter of Rose (185 Misc. 39, affd. 269 App. Div. 933), the court held that a person could not be deprived of a right to contest an instrument offered as decedent's will (pp. 39-40) "merely because a mathematical computation on an actuarial basis might show him to be better served by the admission of the propounded paper.

Summary of this case from Matter of Ballmann
Case details for

Matter of Rose

Case Details

Full title:In the Matter of the Probate of the Will of EMMA H. ROSE, Deceased

Court:Surrogate's Court of the City of New York, New York County

Date published: May 21, 1945

Citations

185 Misc. 39 (N.Y. Misc. 1945)
57 N.Y.S.2d 289

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