Greenspan's Will, In re

• Decision Date: 14 February 1974
• Citation: 43 A.D.2d 998,352 N.Y.S.2d 263
• Parties: In the Matter of the Probate of the WILL of William GREENSPAN, Deceased. Emanuel ZIMMER, Appellant, v. Evelyn GREENSPAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 263

352 N.Y.S.2d 263

43 A.D.2d 998

In the Matter of the Probate of the WILL of William

GREENSPAN, Deceased.

Emanuel ZIMMER, Appellant, v. Evelyn GREENSPAN, Respondent.

Supreme Court, Appellate Division, Third Department.

Feb. 14, 1974.

Zimmer, Fishbach, Hertan & Haberman, New York City (Louis C. Fieland, New York City, of counsel), for appellant.

Oppenheim & Drew, Monticello (Stephen L. Oppenheim, Monticello, of counsel), for respondent.

Before HERLIHY, P.J., and GREENBLOTT, COOKE, KANE and MAIN, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Surrogate's Court of Sullivan County, entered October 15, 1973, which denied the proponents' motion for summary judgment dismissing respondent's objections to the probate of the will of William Greenspan, deceased.

Decedent died March 16, 1972 in the State of Florida survived by a widow, the respondent Evelyn Greenspan, and two daughters by a previous marriage. The widow obtained Letters of Administration from the Surrogate of Sullivan County on September 5, 1972 and instituted a proceeding to discover certain property. The proceeding was stayed by appellant herein when he filed a petition for probate of a certain instrument purporting to be the last will and testament of the decedent dated February 1, 1968, whereby decedent left his entire estate in equal shares to his two daughters. On January 17, 1973 testimony of the two subscribing witnesses was taken and, at the conclusion thereof, the attorneys for the respective parties stipulated that respondent would have 10 days to file formal objections to probate, the time to be measured from the receipt by respondent's attorney of notification by appellant's attorney that there was no other file or memorandum in his office relating to the execution of the instrument offered for probate. On January 22, 1973 appellant forwarded a letter to respondent's attorney by certified mail, return receipt requested, advising that no will file existed. Receipt of this letter may be presumed (Aetna Ins. Co. of Hartford, Conn. v. Millard, 25 A.D.2d 341, 269 N.Y.S.2d 588). No objections were filed until March 21, 1973 and, as a result, appellant moved for summary judgment dismissing the objections as untimely and insufficient in law.

The order denying the motion must be reversed. The stipulation limiting the time for filing objections was clear and unequivocal and compliance therewith was mandatory (SCPA 1410). Furthermore, nothing contained in the record can...