In re the Probate of the Will of Wenger

Appellate Division of the Supreme Court of New York

In re the Probate of the Will of Wenger

10 A.D.2d 639, 196 N.Y.S.2d 942, 1960 N.Y. App. Div. LEXIS 11753

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

DecidedFebruary 15, 1960

StatusPublished

This text of 10 A.D.2d 639 (In re the Probate of the Will of Wenger) 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 Probate of the Will of Wenger, 10 A.D.2d 639, 196 N.Y.S.2d 942, 1960 N.Y. App. Div. LEXIS 11753 (N.Y. Ct. App. 1960).

Pincite

Opinion

Appeal from so much of a decree of the Surrogate’s Court, Queens County, admitting a will to probate as decreed (1) that the opening of a savings bank account by the testator in trust for Ms son, Samuel Alton Wenger, born after the execution of the will, constituted a settlement within the meaning of section 26 of the Decedent Estate Law, and (2) that the after-born son is barred from taking an intestate share of the estate. Decree modified by striking therefrom the last two decretal paragraphs. As so modified, decree insofar as appealed from unanimously affirmed, with costs to all parties filing separate briefs, payable out of the estate, and without prejudice to such further proceedings as may be proper to adjudicate the rights of the infant Samuel Alton Wenger with respect to the estate. In our opinion, the learned Surrogate was without authority, on the record presented, to determine in this probate proceeding the rights of the after-born infant under section 26 of the Decedent Estate Law. (Surrogate’s Ct. Act, § 40, subd. 8.) Whether the opening of the bank account constituted a settlement within the meaning of section 26 of the Decedent Estate Law was a question of fact, which should not have been decided in this probate proceeding without notice and without an opportunity to the interested parties to be heard thereon. The appeal is properly before us in behalf of the infant, an aggrieved party, who seeks relief through his general guardian, after his special guardian, appointed by the Surrogate, failed to appeal in his behalf. Under the circumstances disclosed, this court could, if necessary, appoint another special guardian to act in his behalf. There is no occasion to do so, however, since his general guardian has acted for Mm and obviously has no interest adverse to that of the infant on this appeal. Present — Nolan, P. J., Beldoek, Christ, Pette and Brennan, JJ.

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Appeal from so much of a decree of the Surrogate’s Court, Queens County, admitting a will to probate as decreed (1) that the opening of a savings bank account by the testator in trust for Ms son, Samuel Alton Wenger, born after the execution of the will, constituted a settlement within the meaning of section 26 of the Decedent Estate Law, and (2) that the after-born son is barred from taking an intestate share of the estate. Decree modified by striking therefrom the last two decretal paragraphs. As so modified, decree insofar as appealed from unanimously affirmed, with costs to all parties filing separate briefs, payable out of the estate, and without prejudice to such further proceedings as may be proper to adjudicate the rights of the infant Samuel Alton Wenger with respect to the estate. In our opinion, the learned Surrogate was without authority, on the record presented, to determine in this probate proceeding the rights of the after-born infant under section 26 of the Decedent Estate Law. (Surrogate’s Ct. Act, § 40, subd. 8.) Whether the opening of the bank account constituted a settlement within the meaning of section 26 of the Decedent Estate Law was a question of fact, which should not have been decided in this probate proceeding without notice and without an opportunity to the interested parties to be heard thereon. The appeal is properly before us in behalf of the infant, an aggrieved party, who seeks relief through his general guardian, after his special guardian, appointed by the Surrogate, failed to appeal in his behalf. Under the circumstances disclosed, this court could, if necessary, appoint another special guardian to act in his behalf. There is no occasion to do so, however, since his general guardian has acted for Mm and obviously has no interest adverse to that of the infant on this appeal. Present — Nolan, P. J., Beldoek, Christ, Pette and Brennan, JJ.

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Bluebook (online)

10 A.D.2d 639, 196 N.Y.S.2d 942, 1960 N.Y. App. Div. LEXIS 11753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-wenger-nyappdiv-1960.