In re the Estate of Frey

Appellate Division of the Supreme Court of New York

In re the Estate of Frey

40 A.D.2d 1013, 338 N.Y.S.2d 769, 1972 N.Y. App. Div. LEXIS 3003

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

DecidedDecember 26, 1972

StatusPublished

This text of 40 A.D.2d 1013 (In re the Estate of Frey) 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 the Estate of Frey, 40 A.D.2d 1013, 338 N.Y.S.2d 769, 1972 N.Y. App. Div. LEXIS 3003 (N.Y. Ct. App. 1972).

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Opinion

In a probate proceed[1014]*1014ing, the testatrix’s mother appeals from an order of the Surrogate’s Court, Westchester County, dated July 6, 1972, which (1) granted petitioner’s motion to vacate the citation which had been issued to appellant and to strike her appearance and (2) dismissed appellant’s objections to the grant of letters testamentary to petitioner. Order affirmed, with $10 costs and disbursements, payable out of the estate. We are in accord with the Surrogate’s conclusion that appellant is not a person required to be served with process under SCPA 1403 or a person entitled to file objections to probate under SCPA 1410. Accordingly, we do not reach the question as to whether the conclusive statur tory presumption created by EPTL 5-1.4, to the effect that a provision in a will for a spouse (here naming the spouse as executor) is revoked by a subsequent divorce unless the will expressly provides otherwise, can be overcome by a provision in a separation agreement, executed after the will, providing, in effect, that either party (to the separation agreement) may act as executor or executrix for the other’s estate notwithstanding a subsequent divorce. Martuseello, Acting P. J., Latham, Shapiro, Christ and Benjamin, JJ., concur.

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In a probate proceed[1014]*1014ing, the testatrix’s mother appeals from an order of the Surrogate’s Court, Westchester County, dated July 6, 1972, which (1) granted petitioner’s motion to vacate the citation which had been issued to appellant and to strike her appearance and (2) dismissed appellant’s objections to the grant of letters testamentary to petitioner. Order affirmed, with $10 costs and disbursements, payable out of the estate. We are in accord with the Surrogate’s conclusion that appellant is not a person required to be served with process under SCPA 1403 or a person entitled to file objections to probate under SCPA 1410. Accordingly, we do not reach the question as to whether the conclusive statur tory presumption created by EPTL 5-1.4, to the effect that a provision in a will for a spouse (here naming the spouse as executor) is revoked by a subsequent divorce unless the will expressly provides otherwise, can be overcome by a provision in a separation agreement, executed after the will, providing, in effect, that either party (to the separation agreement) may act as executor or executrix for the other’s estate notwithstanding a subsequent divorce. Martuseello, Acting P. J., Latham, Shapiro, Christ and Benjamin, JJ., concur.

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Bluebook (online)

40 A.D.2d 1013, 338 N.Y.S.2d 769, 1972 N.Y. App. Div. LEXIS 3003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-frey-nyappdiv-1972.