This is a case of appeal regarding probate. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. The appellant is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree admitted a will to probate and allowed the opening of a savings account by the testator in trust for his son that was born after the will was executed and constituted a settlement within the meaning of section 26 of the Decedent Estate Law. The appellant also states that the after born son is barred from taking an intestate share of the estate.
A New York Probate Lawyer said when reviewing the case it is this court’s opinion that the Surrogate did not have the authority to determine the rights of the after born infant under section 26 of the Decedent Estate Law. The question of whether opening a bank account constituted a settlement within the meaning of section 26 should not have been decided without notice and without an opportunity for the interested parties to be heard.
The appeal is properly before the court on behalf of an infant who is seeking relief through a general guardian after his special guardian that was appointed by the Surrogate failed to appeal on his behalf.
A Staten Island Probate Lawyer said the decree will be modified by striking the last two paragraphs. The decree as appealed from is unanimously affirmed with costs to each party that filed a separate brief in the matter. The costs are payable from the estate.
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