Opinion
May 17, 1960
Arthur A. Kaye and William B. Pius for petitioner.
Curci Clancy Curci for contestants.
This is a probate proceeding in which the petitioner has moved to dismiss objections filed by a son and a daughter of the decedent on the ground that they are not persons interested, who are permitted to file objections under section 147 of the Surrogate's Court Act. In that contention the petitioner appears to be correct.
To be an "interested person" who can contest a will, there must be a pecuniary loss. The intestate share of each of the objecting parties is 25% of the estate, while under the provisions of the will each receive 33 1/3% of the estate. The will designates a daughter as executrix who would have a right equal to that of the objectants, to letters of administration (Surrogate's Ct. Act, § 118). The possible right to administration does not sustain a right to contest the will ( Matter of Ballmann, 198 Misc. 916, cited in Matter of Waldman, 1 A.D.2d 980 [App. Div., 2d Dept.]).
The objectants have moved to deny the motion and to stay this proceeding, claiming that if the will is admitted to probate they will be prejudiced in an action pending in the Supreme Court to set aside a deed made by the decedent on the same day as the will. The cases cited by the objectants are not applicable but in Baxter v. Baxter (76 Hun 98) it was held that a decree of the Surrogate refusing to admit a will to probate was prima facie evidence of incompetency in a later action to set aside a deed executed on the same day as the will. In the Baxter case, however, the parties had the right to, and did contest the will, and litigated the issue of mental competency before the Surrogate.
In the present case, the objectants cannot contest the will, and, therefore, no prejudice would result to them by the admission of the will to probate. The stay sought is unnecessary and is, therefore, denied.
The motion to dismiss the objections is granted, without costs to either party, and the probate will proceed as an uncontested matter.
Settle order in accordance herewith on five days' notice, with three additional days if service is made by mail.