Opinion
December 26, 1972
In a probate proceeding, the testatrix's mother appeals from an order of the Surrogate's Court, Westchester County, dated July 6, 1972, which (1) granted petitioner's motion to vacate the citation which had been issued to appellant and to strike her appearance and (2) dismissed appellant's objections to the grant of letters testamentary to petitioner. Order affirmed, with $10 costs and disbursements, payable out of the estate. We are in accord with the Surrogate's conclusion that appellant is not a person required to be served with process under SCPA 1403 or a person entitled to file objections to probate under SCPA 1410. Accordingly, we do not reach the question as to whether the conclusive statutory presumption created by EPTL 5-1.4, to the effect that a provision in a will for a spouse (here naming the spouse as executor) is revoked by a subsequent divorce unless the will expressly provides otherwise, can be overcome by a provision in a separation agreement, executed after the will, providing, in effect, that either party (to the separation agreement) may act as executor or executrix for the other's estate notwithstanding a subsequent divorce. Martuscello, Acting P.J., Latham, Shapiro, Christ and Benjamin, JJ., concur.