Opinion
December 31, 1917.
Selig Edelman of counsel [ Toney A. Hardy with him on the brief], Stanchfield Levy, attorneys, for the appellants.
George H. Porter of counsel [ Delafield, Howe, Thorne Rogers, attorneys], for the respondent.
Present — CLARKE, P.J., LAUGHLIN, SCOTT, DOWLING and SHEARN, JJ.
While we are extremely reluctant to review an order of the Surrogate's Court resting upon discretion, we feel that the present case is one in which we should not hesitate to exercise our power in that regard.
The affidavits presented by the contestants appear to make it not improbable that they may be able to successfully prevent the admission of the will to probate, if afforded an opportunity, and these affidavits are met by very unconvincing denials on the part of those interested in upholding the will. The contestants did not voluntarily change their counsel on the eve of the trial. They were apparently abandoned by counsel who had undertaken to represent them, and who had filed objections in their behalf, and were left with but scant time to find other counsel and to properly instruct him. With regard to their delay in moving to open the default it is apparent that this did not prejudice the estate or any one interested in it.
In view of the repeal of former section 2653-a of the Code of Civil Procedure the result of a default on the part of contestants in a probate proceeding, is much more serious than it formerly was, and in consideration of that fact a certain liberality to opening such defaults is excusable.
It follows that the order appealed from should be reversed, and the motion to open contestants' default and restore the cause to the appropriate calendar for trial should be granted, but without costs.
Order reversed and motion granted, without costs.