Petitioner is the niece of the testator. In January, 1961, she and testator entered into an ante-nuptial agreement in which testator agreed to bequeath $25,000 to her. Testator and petitioner were thereafter married in accordance with the rites of the Jewish faith. In January, 1962, the marriage was annulled, the judgment awarding petitioner alimony. Testator died in April, 1965. Petitioner filed objections to probate of his will. Her objections were dismissed on the ground she was not a person interested in the probate proceeding. In April, 1966, petitioner sought a construction of the will. The court declined to entertain the petition inasmuch as the will was wholly unambiguous insofar as petitioner was concerned. The will does not contain the bequest of the $25,000 agreed to in the ante-nuptial agreement.
Petitioner moves to compel the executors to render and settle their account. She asserts she is a creditor of the estate because of the ante-nuptial agreement and also because of unpaid alimony. The executors dispute the enforceability of the agreement and claim the alimony was paid. In response petitioner states she rejected the tender of the alimony after this proceeding was commenced on the ground that the tender did not include interest.
The court construes the filing of the petition, based on the said claims of the petitioner, to be a sufficient presentation of the claims of which the executor had previous knowledge, and the executors’ answer to the petition to be a sufficient rejection of the claims within the intendment of section 208–a of the Surrogate’s Court Act.
Petitioner’s application is granted unless within ten days after service of the copy of the order to be made herein the executors serve and file an amended answer in accordance with the second unnumbered paragraph of section 211–a of the Surrogate’s Court Act. In the event the executors are advised not to take advantage of the provisions of section 211–a of the Surrogate’s Court Act to effect a speedy disposal of the claims, they are directed to file their account within 60 days after service of order to be made herein together with a petition for its judicial settlement and to proceed diligently to obtain jurisdiction over all necessary parties.
The issues in this contested probate proceeding were tried before the Court without a jury. The proof established that the decedent was unable to speak English but could speak Italian. She was unable to read or write in either language. The will was drawn by one of the subscribing witnesses based on notes prepared by an attorney who spoke both languages. The instrument was read to the testatrix and translated into the Italian language by one of the subscribing witnesses in the presence of the other witnesses. Two of the subscribing witnesses spoke both languages. The testatrix stated to them in Italian that it was her will and that she wanted them and the attorney who supervised the execution and who did not speak Italian to sign the propounded instrument as witnesses. The three witnesses saw her sign the instrument. They then signed the will in her presence and in presence of each other. The subscribing witnesses, who understood both languages, interpreted to the third subscribing witness the testatrix’ statements. Upon this proof the court is satisfied that the instrument was executed in conformance with the provisions of Decedent Estate Law, § 21. The issue raised concerning the alleged undue influence practiced upon the decedent by the wife of the contestant was not established.
Accordingly, the court held that the objections are dismissed and probate of the propounded instrument is decreed.
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