Opinion
December 7, 1967
Appeal from the Erie Surrogate's Court.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Decree unanimously modified and as modified affirmed, without costs to any party, and matter remitted to Surrogate's Court of Erie County for further proceedings in accordance with the following Memorandum: The Surrogate was without authority to deny letters testamentary to the executrix designated in the will and to appoint the residuary beneficiaries as administrators with will annexed without proof that the designee was ineligible under the applicable statute. ( Matter of Flood, 236 N.Y. 408). However, the allegations of the objections to appointment as to the exercise of undue influence and misrepresentation by the named executrix when liberally construed may be sufficient, if proved, to establish her incompetence under section 707 of the Surrogate's Court Procedure Act (formerly Surrogate's Ct. Act, § 94). A hearing is required at which objectants may present their proof and a determination, upon the evidence presented by both sides, shall be made. ( Matter of Goldman, 8 A.D.2d 737.) In view of the inexcusable inordinate delay which has already attended this litigation, the hearing shall be had forthwith.