In re the Probate of the Will of Tebin , 180 N.Y.S.2d 341 ( 1958 )

Order unanimously reversed in the court’s discretion and the proceeding in the Surrogate’s Court stayed pending a determination of the Supreme Court action, without costs. We believe the probate proceeding should be stayed until there has been a disposition of the Supreme Court action in which it is sought to impress a trust on certain property. The only question involved in the Surrogate’s Court is whether there was fraud or undue influence in the execution of. decedent’s will. The Supreme Court action however raises an additional issue as to fraud in connection with the transfer of decedent’s property prior to her death. It is clear, therefore, that a determination in the Surrogate’s Court will not dispose of the issues involved in the Supreme Court action. In the circumstances no useful purpose would be served by allowing the probate proceeding to go to trial before trial of the Supreme Court action. No prejudice will result by staying the probate proceeding, particularly since it appears that there are presently no assets in the estate. In fact there never will be any assets unless the Supreme Court action is sustained. Concur — Botein, P. J., Breitel, Rabin, M. M. Frank and Bastow, JJ.