Opinion
June 16, 1955.
Appeal from Surrogate's Court of Columbia County.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
Decedent died a resident of Columbia County on the 18th day of June, 1953. He left an instrument purporting to be his last will and testament, executed some two months prior to his death, which was probated. Upon application of petitioners the Surrogate took proof as to the execution and contents of a former will. It appeared by the testimony of an attorney that decedent had executed a prior will, dated July 11, 1952, in which one of the petitioners, a niece of decedent by marriage, was one of the principal beneficiaries, and in which the other petitioner was also a legatee. The will that was probated excluded petitioners as beneficiaries. Petitioners urged in their petition that the probate proceedings were defective because they were not served with a citation as legatees under a previous will. They were not entitled to service because they were not distributees of the testator, and the previous will had not been filed in the Surrogate's Court (Surrogate's Ct. Act, § 140). Moreover, it was discretionary with the Surrogate whether to reopen the probate proceeding. We cannot say from this record that the Surrogate abused his discretion. Petitioners did not advance sufficient proof to indicate any reasonable probability of success if they were permitted to file objections. There was no evidence of undue influence and the only suggestion that decedent lacked testamentary capacity is to be found in the circumstance that he was confined for a few months in a mental institution. The record shows, however, that he had been discharged from the institution and even the attorney who had drawn the prior will testified that he appeared to be rational after his discharge. Decree unanimously affirmed, without costs.