In re the Probate of the Will of Van Horn , 28 Misc. 2d 708 ( 1961 )

John D. Bennett, S.

In this contested probate, the proponent moves to dismiss the objections on the ground that the contestant does not stand to gain by denial of probate to the propounded instrument since he is merely a legatee and not a distributee. The contestant, however, has submitted an affidavit in opposition, to which is attached an alleged prior will of the decedent, under which the contestant would be the sole beneficiary if such instrument were determined to be the decedent’s last will and testament. Under such circumstances, the contestant does stand to gain by a denial of probate to the propounded instrument (Surrogate’s Ct. Act, § 147). The motion is accordingly dismissed, without costs to either party.