The Respondent found among the decedent’s effects a purported will signed by the decedent but with the signatures of the witnesses torn off and missing. The respondent claims that the attorney whose name appears on the back of the will does not remember the alleged will or attending on the execution of any will by the decedent. Had the decedent died intestate, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest.
Under the will, the appellant was named as the executor and sole beneficiary in the will. When the appellant learned about the will, his attorney visited the respondent’s office and requested that the will be filed forthwith as required by law.
A New York Probate Lawyer said the respondent, instead of merely filing the will, he simultaneously filed a petition for the issuance of citation to show cause why the will should not be admitted to probate and for a decree admitting said will to probate and directing the issuance of letters testamentary to the executor who might qualify, or to determine that the act of tearing revoked the instrument and, if the court found that the will was revoked, then, in the alternative, for the issuance of letters of administration, for the purpose of estate administration or estate litigation, to respondent.
The respondent claims that the will is not valid and probate will be denied. Simultaneously with the filing of the petition, respondent made a motion for the issuance to him of temporary letters of administration.
On the contrary, the appellant opposed respondent’s motion for the appointment of the temporary administrator and moved for an order dismissing the petition to prove the will and for a further order authorizing appellant to petition the court to prove said will.
The respondent’s motion was granted and the appellant’s motion was denied. Westchester County Probate Lawyer said the order denying the appellant’s motion provides that the motion to dismiss the petition for the probate of the will or, in the alternative, for the issuance to respondent of letters of administration is denied in all respects.
The appellant did not move for the dismissal of the entire petition, as indicated by the fact that he requested authorization to petition the court for probate. If the entire proceeding had been dismissed on motion, the appellant would not require authorization to file a petition for probate. It is possible that the request for such authorization was made in view of the fact that the rules provide that: No petition for the probate of a will, or for the grant of letters of administration or of guardianship will be entertained during the pendency of a prior proceeding for the same or like relief respecting the same matter.
The court finds that the respondent was not authorized to propound the will for probate since he was not a person interested in the estate within the statutory definition thereof; neither did the respondent come within the provision of the Surrogate’s Court Act which states that: Nassau County Probate Lawyers said the surrogate’s court may direct the public administrator or county treasurer to present a petition if a will has been filed in the surrogate’s office for over sixty days and no other person who is entitled to petition for its probate has done so.
Here, the Surrogate should have granted the motion to dismiss the petition insofar as it sought the probate of the will and should have granted appellant’s motion for authorization to petition the court for the probate of the will.
On the relief requested in the appellant’s motion, the Surrogate was not required to dismiss the petition insofar as it sought a determination that the instrument was revoked by the act of tearing and that, in the alternative, letters of administration be granted to respondent. But even if the appellant’s motion sought the dismissal of the entire petition, the showing was sufficient to satisfy the Surrogate that the decedent died without leaving a valid will and died intestate; and to authorize him to issue a citation and to continue the proceeding as one for the issuance of general letters of administration.
Henceforth, the Surrogate did not abuse its discretion by the granting of temporary letters of administration to respondent. After appellant files a petition for the probate of the purported will, the parties may move to consolidate the proceeding instituted by appellant with that portion of the proceeding instituted by the respondent which has not been dismissed. The order granting the motion for the issuance of temporary letters of administration is affirmed; the order denying the cross motion to dismiss the petition modified by striking therefrom the ordering paragraph and by substituting therefor provisions granting the appellant’s cross motion: to dismiss the petition insofar as it seeks a probate of the will and to authorize appellant to petition the court for the probate of the will.
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