In re the Estate of Smith

Appellate Division of the Supreme Court of New York

In re the Estate of Smith

51 A.D.2d 1021, 381 N.Y.S.2d 303, 1976 N.Y. App. Div. LEXIS 11799

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

DecidedMarch 15, 1976

StatusPublished

Cited by1 cases

This text of 51 A.D.2d 1021 (In re the Estate of Smith) 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 Smith, 51 A.D.2d 1021, 381 N.Y.S.2d 303, 1976 N.Y. App. Div. LEXIS 11799 (N.Y. Ct. App. 1976).

Pincite

Opinion

In a probate proceeding, the appeal is from a decree of the Surrogate’s Court, Queens County; dated April 4, 1975, which, after a nonjury trial, inter alia, (1) dispensed with the taking of the testimony of one of the attesting witnesses to the will and (2) admitted the will to probate. Decree reversed, with costs payable to both parties out of the estate, and proceeding remanded to the Surrogate’s Court for further proceedings in accordance herewith. The papers and evidence submitted in this proceeding did not satisfactorily establish that, due to physical and mental incapacity, Myra Smith’s testimony could not be "obtained with reasonable diligence” (see SCPA .1405, subds 1, 2). Accordingly, a hearing is required to determine if there are sufficient grounds upon which to dispense with the taking of the said witness’s testimony by commission. Martuscello, Acting P. J., Latham, Cohalan, Damiani and Titone, JJ., concur.

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In a probate proceeding, the appeal is from a decree of the Surrogate’s Court, Queens County; dated April 4, 1975, which, after a nonjury trial, inter alia, (1) dispensed with the taking of the testimony of one of the attesting witnesses to the will and (2) admitted the will to probate. Decree reversed, with costs payable to both parties out of the estate, and proceeding remanded to the Surrogate’s Court for further proceedings in accordance herewith. The papers and evidence submitted in this proceeding did not satisfactorily establish that, due to physical and mental incapacity, Myra Smith’s testimony could not be "obtained with reasonable diligence” (see SCPA .1405, subds 1, 2). Accordingly, a hearing is required to determine if there are sufficient grounds upon which to dispense with the taking of the said witness’s testimony by commission. Martuscello, Acting P. J., Latham, Cohalan, Damiani and Titone, JJ., concur.

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Bluebook (online)

51 A.D.2d 1021, 381 N.Y.S.2d 303, 1976 N.Y. App. Div. LEXIS 11799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-smith-nyappdiv-1976.

Opinion

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