Summary
In Matter of King (27 Misc.2d 502, supra) Judge Cox had denied the relief when only the examination under section 141 of the Surrogate's Court Act was before him.
Summary of this case from Matter of RoundsOpinion
November 25, 1960
Edward J. Murtaugh for John Meehan, petitioner.
Ryan Le Viness ( John F. Le Viness of counsel), for Andrew H. King, respondent.
Karl G. Kolish, as special guardian for Ricky Murray and another, infants, respondent.
This motion by the proponent for an order dismissing the answer of the contestants and directing the admission of the propounded paper to probate is in all respects denied. The objections filed by the contestants put in issue the testator's competency to make a will, defects in its execution and its invalidity because of the addition of text in the handwriting of the testator appearing below his signature and those of the witnesses. The petitioner's reliance upon the testimony of the witnesses in the examination conducted under section 141 of the Surrogate's Court Act is insufficient as a matter of law. In Matter of O'Melia ( 213 App. Div. 387) it was held that since the sole purpose of the examination authorized under that section is to provide persons interested in the estate with an opportunity to determine what position they should adopt in respect of the proposed admission of the will to probate, there exists no reason for employing such an examination as a basis for summary dismissal of the petition or objections.
The motion for summary judgment is in all respects denied as a matter of law.