Opinion
July 10, 1967
Decree of the Surrogate's Court, Westchester County, dated December 13, 1966, reversed on the law and the facts, with costs to all parties filing separate briefs, payable out of the estate, and petition granted. This is a proceeding by the executors of the sister of the decedent herein to set aside a waiver of citation and consent to probate executed by the sister, to vacate the decree admitting decedent's will to probate, and to permit appellants to file objections to said will on the ground of fraud. Under all the circumstances, we are of the opinion that the sister's waiver and consent was invalidly obtained, and that there has been a sufficient showing of probable success in the event of a probate contest (cf. Smallwood v. Overseas Stor. Co., 263 App. Div. 609; Matter of Putnam, 257 N.Y. 140). Hopkins, Benjamin and Munder, JJ., concur; Brennan, Acting P.J., and Nolan, J., dissent and vote to affirm the decree on the opinion of the learned Surrogate.