Kelsey v. Strong

[16]

WORKS, P. J.

Contestant filed her written contest of the will of deceased. As showing her right to inaugurate the contest she alleged that she was a sister of the deceased. In the answer to the contest this allegation was not denied. More than a year after the contest was filed, however, an amended answer was filed and a denial was then interposed. Up to this time the counsel for contestant had believed that she was a sister of the decedent, but he now made an inquiry and ascertained she was but a sister-in-law. He, immediately made written application to the court for leave to amend the contest by alleging that contestant had been a legatee of decedent under a former will. The application showed that the amount of the legacy was ten dollars. It was shown, too, that the counsel of contestant were also attorneys for other legatees under the former will and that the contest had been filed by contestant “as representative of said other legatees.” The proponents of the last will opposed the request for leave to amend the contest and tendered to contestant the sum of ten dollars, the amount of her legacy under the former will. Leave to amend was denied by the court. When the contest came on for hearing it failed because of the inability of contestant to show that she was a sister of the deceased, and the contest was dismissed. Contestant appeals from the order of dismissal.

There was no abuse of discretion in the order of the trial court denying the application for leave to amend the contest. The amount to be secured to appellant as the result of a successful contest—the sum of ten dollars—was so small as to render the contest a matter of negligible moment, especially as the amount was tendered to her at the time the application came on for hearing.

The rights of the other legatees under the former will were not before the court and could, not be injected into the proceeding

via

the application for leave to amend.

Order affirmed.

Craig, J.-, and Thompson (Ira F,), J., concurred.