In re the Estate of Smolley

Appellate Division of the Supreme Court of New York

In re the Estate of Smolley

144 A.D.2d 366, 533 N.Y.S.2d 925, 1988 N.Y. App. Div. LEXIS 11135

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

DecidedNovember 7, 1988

StatusPublished

Cited by1 cases

This text of 144 A.D.2d 366 (In re the Estate of Smolley) 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 Smolley, 144 A.D.2d 366, 533 N.Y.S.2d 925, 1988 N.Y. App. Div. LEXIS 11135 (N.Y. Ct. App. 1988).

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Opinion

In a probate proceeding, the petitioner appeals from so much of a decree of the Surrogate’s Court, Queens County (Laurino, S.), entered September 25, 1987, as denied that branch of his petition which sought his appointment as executor and the issuance of letters testamentary to him.

Ordered that the decree is reversed insofar as appealed from, on the law, without costs or disbursements, and the petition is granted.

The Surrogate’s finding that the petitioner is not competent to serve as executor by reason of improvidence (see, SCPA 707 [1] [e]) is without support in the record. Neither the fact that the petitioner, an attorney, employed an attorney to assist him by providing legal services to the estate, nor the fact that the petitioner did not enter into a retainer agreement with the attorney he so employed, without more, constitutes sufficient grounds for denying the issuance of letters testamentary to the petitioner, the named executor under the will sought to be probated (see, SCPA 707 [1], [2]; 711; see also, Matter of Flood, 236 NY 408; Matter of Leland, 219 NY 387). Mangano, J. P., Brown, Sullivan and Harwood, JJ., concur.

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In a probate proceeding, the petitioner appeals from so much of a decree of the Surrogate’s Court, Queens County (Laurino, S.), entered September 25, 1987, as denied that branch of his petition which sought his appointment as executor and the issuance of letters testamentary to him.

Ordered that the decree is reversed insofar as appealed from, on the law, without costs or disbursements, and the petition is granted.

The Surrogate’s finding that the petitioner is not competent to serve as executor by reason of improvidence (see, SCPA 707 [1] [e]) is without support in the record. Neither the fact that the petitioner, an attorney, employed an attorney to assist him by providing legal services to the estate, nor the fact that the petitioner did not enter into a retainer agreement with the attorney he so employed, without more, constitutes sufficient grounds for denying the issuance of letters testamentary to the petitioner, the named executor under the will sought to be probated (see, SCPA 707 [1], [2]; 711; see also, Matter of Flood, 236 NY 408; Matter of Leland, 219 NY 387). Mangano, J. P., Brown, Sullivan and Harwood, JJ., concur.

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Bluebook (online)

144 A.D.2d 366, 533 N.Y.S.2d 925, 1988 N.Y. App. Div. LEXIS 11135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-smolley-nyappdiv-1988.

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