Reid v. Vanderheyden

Court for the Trial of Impeachments and Correction of Errors

Decided July 1, 1799

Court for the Trial of Impeachments and Correction of Errors · decided 1799-07-01

S. Vanderheyden, brother of the half-blood, to J. G. V., the respondent, died without issue, but leaving his wife enciente, and,a will, by which he gave his property to other persons than''the respondent ; but in case of a child born, then to his wife and child in fee. X G. V. filed a caveat against the proof of the will of the deceased. The surrogate proceeded, after citing the parties, to take proofs; and before the decree was made, a child was born.

Decided 1799-07-01

¶1The order of Chancellor S. for a feigned issue was accordingly annulled- and vacated without costs below to either, party, and the appeal ordered to be quashed.

¶2 *559It was also held, that the declaration or order of a surrogate, upon establishing a will, that each party should pay his own costs, is not the subject of an appeal. 1. Because this was not a decree in form. 2. Because a surrogate having no power in such case to award costs or decree in form for costs, it is coram non judice and void without reversal on appeal; and that even if there were an interest in the costs merely, that would not give the party a right of appeal in regard to any other matter.