213 A.D. 345 | N.Y. App. Div. | 1925
We agree with the conclusions of Mr. Justice Hagarty in his opinion (122 Misc. 726) filed on granting defendant’s motion for the direction of a verdict. In addition to the failure of the plaintiffs to make but a case against the depository in the particulars referred to in the opinion pf the learned trial justice, we are impressed with the absence of explanation by plaintiffs of their apparent failure to take any proceedings to vacate the probate proceedings by which the alleged will of the decedent was certified as valid and letters testamentary issued to the persons represented therein to be the daughter and son-in-law of the testator. The decree revoking the probate was not entered until two years had elapsed from the date of issuance of the letters testamentary and not until after the death of the son-in-law, one of the executors, who had acted as counsel for the estate in dealing with the defendant. There is no suggestion that defendant trust company was at any time notified of the alleged fraud perpetrated by the executors on the next of kin, all of whom apparently resided in the city of New York. Indeed, no claim was made on the defendant trust company for seven months after entry of the decree vacating the probate and removing the executors. The fictitious daughter and son-in-law were allowed to prove the will, obtain letters testamentary
The judgment and order granting extra allowance should be affirmed, with costs.
Present — Kelly, P. J., Rich, Jaycox, Manning and Young, JJ.
Judgment and order granting extra allowance unanimously affirmed, with costs.