Opinion
June 15, 1959
Present — Wenzel, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ. [ 13 Misc.2d 678.]
In a proceeding to construe a will, the appeal is from so much of a decree and order (one paper) of the Surrogate's Court, Nassau County, as dismissed the petition and as awarded costs to certain of the respondents. The petition was dismissed pursuant to a motion made under subdivisions 1, 4 and 6 of rule 107 of the Rules of Civil Practice on the ground that appellant had released her interest in the real property which was the subject of the construction proceeding and that said interest had been surrendered and extinguished by a decree of a court of competent jurisdiction, as a consequence of which appellant is not a party interested in the construction proceeding, and the court lacks jurisdiction of the proceeding. Decree and order insofar as appealed from unanimously affirmed, with costs to all parties filing separate briefs, payable out of the estate. No opinion.