| N.Y. App. Div. | Dec 20, 1956
Appeal from a decree of the Surrogate’s Court of Tompkins County which denied a petition to open a decree of probate of the last will and testament of decedent. Petitioner signed a consent and waiver to the probate of her sister’s will. In her petition she alleges that she was induced to do so by fraudulent representations on the part of counsel for the executor, specifically that he told her “ she got everything anyway ”. She also alleges that the terms of the will were not brought to her attention until many months later. She now alleges that the decedent was incompetent to make a will. On an oral motion made by the respondents that the petition did not state facts sufficient to raise a triable issue as to fraud the Surrogate dismissed the petition. Since such a petition is somewhat analogous to a complaint every intendment must be drawn in favor of the pleader, and the facts alleged must be taken as true for the purposes of the motion. Viewed in that light the petition must be held to state a claim in fraud and should not have been dismissed summarily. We are by no means suggesting that the Surrogate should exercise his discretion and reopen the probate proceeding, but the informality inherent in submitting such a motion orally is not a practice we approve of in Surrogate’s Court. Moreover, the decision indicates that the Surrogate to some extent considered matters that are dehors the record before us. We think the respondents should have been put to answer and testimony should have been taken on the issues involved so that a record sufficient for the purposes of review could be made. Decree reversed, without costs, and matter remitted to the Surrogate’s Court. Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ., concur.