Parker v. Linden

■Setting Aside—Premature Judgment. A judgment entered before one of the defendants’ time to answer has expired will be set aside as premature on the application of such defendant, though on the trial of the case there has been an adjudication of her death. ’

Appeal from special term, New York county. Action by John Parker and Robert Graham, executors, etc., of James Linden, deceased, against Maria Linden, James Lego, alias Lythgoe, and others, for the construction of the will of James Linden, for a sale of testator’s realty, And for a decree declaring certain legacies as having lapsed by the death of the devisees during testator’s life-time. The will was dated November 9, 1879, .and testator died in New York City on June 10,1885. One of the devisees— •testator’s half-sister, Jane Lego, alias Jane Smith—went to Australia from Liverpool, Eng., about 1837. She was then 22 years old. Afterwards she went to New Zealand, and her relatives had not heard from her for about 50 years. The court found as a conclusion of law that the devise to her had lapsed, and that as to it testator had died intestate. Judgment was entered accordingly. Subsequently the attorney for the executors moved that the judgment be set aside as premature and irregular on the ground that before Ahe entry of judgment said devisee Jane Smith had made a motion to be allowed to come in and defend on an affidavit, verified before the United States consul at Auckland, New Zealand, establishing her identity; that such motion was granted, and 40 days given her in which to answer; and that such time had not yet expired. The motion to set aside the judgment was denied, from which order, as well as from the judgment itself, plaintiffs appeal. For former report, see 13 H. Y. Supp. 95.