In re Proving the Last Will & Testament of Carstens

248 A.D. 820, 289 N.Y.S. 161, 1936 N.Y. App. Div. LEXIS 7498

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1936
• Status: Published

Opinion

Order of the Surrogate’s Court of Queens county, denying petitioner’s application pursuant to section 19 of the Decedent Estate Law for the enforcement of a compromise agreement and directing the entry of a decree in conformity therewith reversed on the law and the facts, with costs, and motion granted, with ten dollars costs, payable by the respondents out of the compromise sum. The meeting of the minds of the parties is evidenced by the written stipulation, and the proceeding pursuant to section 19 of the Decedent Estate Law was properly based thereon. Such a motion might be denied in a proper exercise of discretion or when equitable considerations are present, but the denial of the surrogate was not in the exercise of discretion but apparently he felt constrained to do so as a matter of law. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.