150 N.Y.S. 692 | N.Y. App. Div. | 1914
The testator appointed the appellant and Henrietta V. Carll executor and executrix of his last will and testament and they duly petitioned for the probate thereof on the 7th day of October, 1912. On the 24th of January, 1913, the appellant applied, on the advice of counsel, to the Surrogate’s Court for an order striking his name from the petition as one of the petitioners for the probate of the will, and for leave to file objections thereto. The motion was granted and the order was entered and filed accordingly on the 24th of March, 1913. On the 1st of April, 1913, the appellant filed objections to the probate of the will, principally on the ground that the decedent left a prior will and that the execution of the later will was obtained by undue influence, and that it was doubtful whether the decedent was then of sound and disposing mind. It áppears that appellant was unable to find the prior will and that he has become satisfied that it was destroyed by or under the direction of the decedent prior to the execution of the later will; and that appellant is now convinced that the decedent was competent to make the later will, and that there was no ■ fraud, undue influence or duress practiced upon him.
An affidavit made by the widow of the decedent was read in opposition to the motion showing that she filed objections to the probate of the will; that when the hearing was about to be brought on she and the executrix, who is the principal beneficiary under the will, arrived at an agreement by which the will was to be withdrawn from probate and it was to be conceded that the decedent died intestate and that letters of administration were to be issued to her and she was to pay the
It further appears by the affidavit of the executrix that she has agreed to withdraw her application for the probate of the will, and has effected a settlement with the parties in interest, including Dunham, who contested the probate, other than the appellant; but Dunham denies that she has effected a settlement with him, and it appears that an infant was interested under the will and it is not shown that the interests of the infant do not require the probate of the will.
The learned surrogate doubtless denied the application on the theory that the appellant has not acted in good faith, and while there is some evidence tending to sustain that view, it is not conclusive, and the appellant contends, in effect, that he is desirous of performing his moral duty to the decedent of endeavoring to have the will probated. The settlement which has been negotiated between the executrix and some of the parties in interest affords no justification for the denial of the motion. It appears that one of the parties in
I am of opinion that the application should have been granted. The renunciation by the appellant was not executed as pi-escribed by section 2639, now 2628,
It was held in Matter of Baldwin (21 App. Div. 506) that this section confers discretionary power on the surrogate, and that the court on appeal will not interfere with his discretion unless it appears to have been improperly exercised. For the purposes of this appeal we may assume, without further considering the point, that to be the correct rule, and still the order cannot be sustained, for the proper exercise of judicial discretion, if there be any discretion, on these facts required that the executor be permitted to revoke his withdrawal from the petition for probate. The Code provisions are mere statutory enactments of the common-law rule by which an executor had a right to withdraw or revoke a renunciation at any time before letters were issued, or at any time thereafter when the estate was without a lawful administrator. (Matter of Suarez, 3 Dem. 164; Robertson v. McGeoch, 11 Paige,
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.
Clarke, McLaughlin, Scott and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, without -costs.
See Laws oí 1914, chap. 448.—[Rep.