In re Miller , 292 N.Y.S. 13 ( 1936 )

Order of the Surrogate’s Court of Kings county of June 26, 1936, denying appellant’s application to vacate an order permitting respondent to withdraw her waiver of citation and consent to probate reversed on the law and the facts, with ten dollars costs and disbursements to appellant, payable out of the estate, and motion granted, with ten dollars costs. Order of the Surrogate’s Court of Kings county of September 23,1936, denying appellant’s motion to strike out the objections to probate contained in the answer of the respondent reversed on the law and the facts, without costs, and motion granted, without costs. In our opinion, the record discloses a complete failure upon the part of the respondent to set forth facts forming a basis for the belief that she has a reasonable expectation of success in contesting the will, and the failure to set forth such facts precludes her from obtaining the relief sought, namely, to vacate the waiver and consent which she had executed. Hagarty, Davis and Johnston, JJ., concur; Lazansky, P. J., and Carswell, J., dissent and vote to affirm on the grounds that discretion was fairly exercised by the surrogate, and that the merits should not be determined on affidavits.