In re Proving the Last Will & Testament of Rubens

The petitioner appellant, being one of the ¡executors named in a paper purporting to be the will of Charles Bubens, deceased, filed in the surrogate’s office on July 19, .1906, a petition asking that said paper be admitted to probate as the last will and testament of said Bubens. The petition contained the following allegation : “That the said deceased was at the time of his death a resident of the city of Baris, France, and departed this life in said pity of Paris, France, on the 1st day of June, 1906, leaving assets within *524the State and county of Hew York.”. A- number of the next of kin have filed objections to. the probate, alleging,.among other things, that the deceased, at the time he executed the alleged will, was a resident of and domiciled in the city of Paris, France, and that the said alleged Will was not executed according to the' laws of the said deceased’s residence, to wit, the Republic of France, and hence, that the surrogate has no jurisdiction to entertain the proceeding for the probate of said will or to admit it to probate. Said objectors seem to be disposed to urge, if we may judge from their briefs, that this particular objection is sought to be established by the statement quoted above-from the petition. The petitioner now seeks to amend his petition by alleging, in place of the allegation quoted above, the following: “ That, the said deceased departed this life on the 1st day of June, 1906, at. the city of Paris,.France, where he then was and had for many years previous to his said death, been á sojourner or temporary resident, leaving assets within the State and county of Hew York. That he was at the time of his death' a citizen of the -United- States, and a domiciled resident of the city and. county of Hew York.” ■ ' -

. The surrogate denied the motion for the amendment of the petition..

. We are of the opinion that the motion should have been granted... The modern tendency lias been to afford litigants every reasonable opportunity, if seasonable.application be made, to put their plead-. ings into such form as they consider will best-present their contention as to the1 questions at. issue. This practice tends to promote the ends of justice and to prevent the doing of injustice through technical or inadvertent errors of pleading. If the petitioner,' through inadvertence or mistake, failed to present the facts concerning the residence and the domicile of the deceased, as they really are, and should thereby be considered as having made an admission fatal to the granting of his. petition, most grave injustice might be wrought, not alone to him but to the legatees named in the will, who are certainly not chargeable with any erroneous statement which may have crept into the petition. Oh the other hand, no injustice-whatever-can result .to any one, legatee or contestant, if the petitioner be allowed to so. frame his petition that the actual facts of the case, whatever they may be, may be elucidated and laid before the surrogate for his consideration.

*525The order must, therefore, be reversed and "the motion granted, with ten dollars costs and disbursements in this court payable out of the estate.

Patterson, P. .J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements payable out of the estate, and motion granted. Order filed.