Estate of Cunningham

Department No. 1, by the Court (from the Bench): It is urged by counsel for appellant, that the respondents were estopped from prosecuting their petition for a revocation of the probate of the will of December 14th, 1870, by the order and judgment of the Probate Court, based upon the verdict in favor of that will. But it seems that on the trial before the jury, by whom the will of December, 1870, was upheld, (as well as at the previous jury trial) the respondents were represented only by an attorney appointed by the Court. If they were parties contesting the will at the former trials, the contest (so far as they were concerned) was made by the attorney appointed by the Court, and § 1307 of the Code of Civil Procedure provides that a contest made by such an attorney “ does not bar a contest after probate by the party so represented, if commenced within the time provided in article four of this chapter.” There is no dispute that the present proceeding was commenced within such time. If respondents were not, within the meaning of the law, parties to the former contest, they were not bound by the former adjudication.

Section 1327 of the Code of Civil Procedure provides that “ any person interested ” may, at any time within a year after the probate of a will, contest the probate or validity of the will; and § 1829, that at the hearing “ the court must proceed to try the issues of fact joined in the same manner as in the original contest of a will.”

Judgments and orders affirmed.