This is a matter being held in the Second Department, Appellate Division of the Supreme Court of the State of New York and involves the probate of a will. The petitioner is appealing an order that was made in the Surrogate’s Court of Queens County on the 12th of January, 1960. The order denied her motion to strike out the appearance, authorization, and objections to probate that were filed by the respondent, the Public Administrator of Queens County.
A New York Probate Lawyer said a special guardian was appointed by the court on behalf of the unknown distributees of the estate. The special guardian consented to act and filed objections to probate. The court directed service of citation upon the respondent. The respondent then filed a notice of appearance authorizing his attorney to appear in his place. The petitioner challenged the respondent’s status in this proceeding, which was confirmed by the Surrogate’s court act that allows the respondent to represent unknown persons in matters of probate.
The respondent claims that as a person who might be entitled to the letters of administration in the event of failure to prove the propounded will, he is entitled to appear in the proceeding as a matter of right. However, there is no pleading or affidavit that shows any facts that there is a possible interest by the respondent.
In the propounded instrument the petitioner is described as a cousin of the decedent and is named as the executrix of the estate. Proof has been provided to show that the decedent and petitioner are first cousins. The petitioner has been found to be qualified to be named as the temporary administratix over the estate, having priority over the respondent in this case.
From the records that the court has maintained we find that the decedent’s statutory distributees have been named and served. Any issue with this evidence should be raised in a suitable hearing and tried if it is necessary.
Queen Probate Lawyers said the original order is reversed with $10 costs and disbursements to be paid to the petitioner from the estate. The motion is granted to the extent that the respondent’s objections will be struck out. The respondent is left with the option to serve and file a verified pleading setting forth the allegations of fact to show that the respondent is interested in the estate as a reasonable appointee to represent the decedent in the administration of her estate. This must be filed with the court within 15 days of this order.
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