Opinion
December, 1929.
Present — Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ.
Upon agreed statement of facts, judgment unanimously directed for defendant, without costs. The Surrogate's Court of the county of Richmond failed to acquire jurisdiction of all parties interested in the estate of Carrie Melville, deceased, and, therefore, the decree of the court declaring the 13th paragraph of the will invalid, illegal and void, and directing its elimination from the will, does not affect the rights of the contingent remaindermen, who, concededly, were not parties to the proceeding brought for the construction of the will of Carrie Melville pursuant to the provisions of section 145 of the Surrogate's Court Act. The plaintiffs, therefore, cannot convey a good and marketable title. In this decision we do not review the decree of the learned surrogate of Richmond county, under which the 13th paragraph of the will was excised, as it is not before us and, therefore, do not pass upon the validity or invalidity of that clause.