Opinion
April 27, 1971
Appeal from an order of the Surrogate's Court of St. Lawrence County, entered October 30, 1970, which denied appellant's motion to delete the names of Michael MacKenzie, an infant, and Martha MacKenzie as interested parties in the judicial settlement of the estate of Katherine Woods. On December 4, 1970 that part of the appeal which was from an order of said court, entered October 8, 1970, appointing Charles Campbell as guardian ad litem for said infant, was dismissed, no appeal lying from an ex parte order (see 10 Carmody-Wait 2d, New York Practice, § 70:27). In 1970 the executor, as part of the proceedings for final judicial settlement, petitioned for a construction of certain portions of decedent's will, one part being that in which certain real property known as the Fairgrounds was devised to appellant. The executor's petition recited that said will contained no residuary clause and that decedent, after executing said instrument but before death, contracted to sell certain acreage included in said tract. Appellant moved to have the names of Michael MacKenzie and Martha MacKenzie deleted from the petition and citation, alleging that, as a result of a stipulation, decree and acknowledged receipt made in 1967 in the probate proceeding, they were not interested parties in the judicial settlement proceeding. The Surrogate held that appellant, as a legatee and devisee, lacked legal capacity to make the application. Although, generally, all persons required to be served with process in an accounting proceeding may file objections, this is not always so since the court will not permit objections to be filed where the objecting party will not be benefitted by them, even if sustained ( Matter of Lawrence, 271 App. Div. 897, app. dsmd. 297 N.Y. 596; 4A Warren's Heaton on Surrogates' Courts, § 379, p. 71-64). Since it appears from the executor's account and schedules that appellant's legacy may be reduced by estate expenses, including a fee for a guardian ad litem, appellant had standing to make the application. However, further proceedings should be taken to determine whether or not Michael MacKenzie is a person interested in the judicial settlement proceeding. Order reversed, on the law and the facts, without costs, and matter remitted to the Surrogate's Court of St. Lawrence County for further proceedings not inconsistent herewith. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.