Opinion
November 9, 1964
In a proceeding to judicially settle the account of the executors of decedent's estate, in which a final decree had been entered November 19, 1945 settling the account, the committee of Cecile V. Tolstoi (one of the testator's daughters who on May 16, 1956 had been adjudicated an incompetent person) appeals from an order of the Surrogate's Court, Nassau County, made February 24, 1964 on reargument, which adhered to the court's original determination made after a hearing, and which denied the committee's motion to vacate the said decree of November 19, 1945 insofar as it affects the interests of the incompetent. Order affirmed, without costs. The motion to vacate was made on the ground that at the time of her execution (on July 31, 1945) of a waiver of citation in said proceeding, the said Cecile V. Tolstoi was of unsound mind. In our opinion, the committee failed to sustain the burden of proof to show, within the meaning of the statute (Surrogate's Ct. Act, § 64), that said Cecile V. Tolstoi, now an adjudicated incompetent, was mentally incapable adequately to protect her rights on July 31, 1945, when she executed a waiver of citation and consent to the settlement of the executors' account. Nor is there evidence to show that the execution or delivery of the document in question was obtained by a direct transaction between the fiduciaries and the said Cecile V. Tolstoi. The proof shows that on July 31, 1945 her mental condition was substantially different from her mental condition on April 3, 1952, the date of the judicial settlement of the trustees' intermediate account, which the Surrogate has since reopened for further proceedings insofar as that decree affects the incompetent's interests. (For decisions on three companion appeals see 22 A.D.2d 855.) Beldock, P.J., Ughetta, Kleinfeld, Brennan and Hopkins, JJ., concur.