In re Probate of the Will of Scheu

Appellate Division of the Supreme Court of New York

In re Probate of the Will of Scheu

29 A.D.2d 626, 285 N.Y.S.2d 380, 1967 N.Y. App. Div. LEXIS 2833

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 7, 1967

StatusPublished

Cited by5 cases

This text of 29 A.D.2d 626 (In re Probate of the Will of Scheu) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Probate of the Will of Scheu, 29 A.D.2d 626, 285 N.Y.S.2d 380, 1967 N.Y. App. Div. LEXIS 2833 (N.Y. Ct. App. 1967).

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Opinion

Decree unanimously modified and as modified affirmed, without costs to any party, and matter remitted to Surrogate’s Court of Erie County for further proceedings in accordance with the following Memorandum: The Surrogate was without authority to deny letters testamentary to the executrix designated in the will and to appoint the residuary beneficiaries as administrators with will annexed without proof that the designee was ineligible under the applicable statute. (Matter of Flood, 236 N. Y. 408). However, the allegations of the objections to appointment as to the exercise of undue influence and misrepresentation by the named executrix when liberally construed may be sufficient, if proved, to establish her incompetence under section 707 of the Surrogate’s Court Procedure Act (formerly Surrogate’s Ct. Act, § 94). A hearing is required at which objeetants may present their proof and a determination, upon the evidence presented by iboth sides, shall be made. (Matter of Goldman, 8 A D 2d 737.) In view of the inexcusable inordinate delay which has already attended this litigation, the hearing shall be had forthwith. (Appeal from decree of Erie Surrogate’s Court admitting will to probate and appointing administrators.) Present — Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.

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Decree unanimously modified and as modified affirmed, without costs to any party, and matter remitted to Surrogate’s Court of Erie County for further proceedings in accordance with the following Memorandum: The Surrogate was without authority to deny letters testamentary to the executrix designated in the will and to appoint the residuary beneficiaries as administrators with will annexed without proof that the designee was ineligible under the applicable statute. (Matter of Flood, 236 N. Y. 408). However, the allegations of the objections to appointment as to the exercise of undue influence and misrepresentation by the named executrix when liberally construed may be sufficient, if proved, to establish her incompetence under section 707 of the Surrogate’s Court Procedure Act (formerly Surrogate’s Ct. Act, § 94). A hearing is required at which objeetants may present their proof and a determination, upon the evidence presented by iboth sides, shall be made. (Matter of Goldman, 8 A D 2d 737.) In view of the inexcusable inordinate delay which has already attended this litigation, the hearing shall be had forthwith. (Appeal from decree of Erie Surrogate’s Court admitting will to probate and appointing administrators.) Present — Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.

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Bluebook (online)

29 A.D.2d 626, 285 N.Y.S.2d 380, 1967 N.Y. App. Div. LEXIS 2833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-probate-of-the-will-of-scheu-nyappdiv-1967.

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