This action was brought in 1889 to construe the will of John J. Van Rostrand. J udgment was entered May 8,1889, and it and the findings were amended by Mr, Justice Cullen, the'trial judge, sitting as a court, hy an order dated June 8, 1889, changing the word “children” to “legal heirs”, to conform'to.the exact terms of the will, the word children'Jiaving been .used by inadvertence.
Rothing further was done in the action for nearly 18 years, viz. until January 22, 1907, when the defendant Anabel Gardiner Van Rostrand, this appellant, took an appeal from the said order. ' Meanwhile every one acquiesced, and the estate of the said testator had been administered in accordance with the said judgment and order, and the executors and trustees had followed the same; three of the four plaintiffs had died; the attorney for the plaintiffs had also died, and his papers in the action cannot be found; the guardian ad litem for three of the defendants, infants when the action was begun, had *263died, and his papers and those of his attorney in the action cannot be found; the other defendant, also then an infant, and represented' by a guardian ad litem, and the attorney of the said guardian, a member of a firm, had also died, and their papers in the action cannot be found, and the said firm had been dissolved.
Another defendant, John J. Yan Nostrand, grandson of the testator, to whom a share in trust was left by the said will, the principal to go to his “heirs”, had also died in February, 1906.. He left his mother, Louisa B. Yan Nostrand, his sole heir, and executor of his will, and letters were issued to her.
After taking such appeal on January 22, 1907, the appellant made a motion for the substitution of the said Louisa B. Van Nostrand, as executor of the said John. J.-Yan Nostrand, deceased grandchild, which substitution has to be made before the appeal can be heard (Code Civ. Pro. § 1297); but the motion was denied by the Special Term for laches. The appeal is now brought on without any revivor or substitution for the said deceased grandchild, notwithstanding the said code provision to the contrary. If the said order amending"the. judgment should be .reversed (and it is from that that the appeal is), and the word “ children ” thereby restored to the judgment instead of the word “heirs”, as the will reads, tlie property left in trust to such grandchild, with remainder so limited to his “ children ”, would not go- to his mother, his only hq'ir, but to his collaterals, under the said will of his grandfather, of whom this appellant is one.
The .appellant was about 25 years of age when she took this appeal on January 22, 1907. Her appeal, taken nearly 18 years after the order appealed from was entered, may have been still open to her if the time for it was not limited to 30 days by' service of notice of entry of the order appealed from (Code Civ. Pro. § 1351) ; a thing difficult, if not impossible, to now establish after the lapse of so much time, and the deaths, and the losses of papers, which have occurred meanwhile. Nevertheless, as the said code section provides, the appeal cannot be heard unless the heir, devisee, executor or administrator of the deceased adverse party be substituted, and it will be noticed that all of the other parties are now adverse to the said mother of the said deceased party, for they, instead of her, get the share that was put in trust for him, if it does not go to his heir, i. e., *264his said mother. The court below denied the motion to-substitute his said'mother for laches, and- such a motion' may be denied for laches (Shipman v. Long Island R. R. Co., 11 App. Div. 46; Pringle v. Long Island R. R. Co., 157 N. Y. 100).
We cannot hear this appeal, or make any binding judgment herein, without such substitution being first made. We. should therefore refuse to hear it.
Since the foregoing- was written a motion has been made to -dismiss the appeal, due proof of the service of the order afipealed.from, with notice of entry thereof, on the guardian ad litem Of the appellant On June 21, 1889, having been found.
The appeal .should be dismissed.
Woodward, Rich and Miller, JJ., concurred; Hooker, J., dissented in Opinion.