In the Matter of Lena A. Greene

• Decision Date: 15 November 2011
• Citation: 932 N.Y.S.2d 544,89 A.D.3d 941,2011 N.Y. Slip Op. 08359
• Parties: In the Matter of Lena A. GREENE, deceased.Kevin Greene, et al., petitioners-respondents;Keith B. Greene, appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 941
932 N.Y.S.2d 544
2011 N.Y. Slip Op. 08359

In the Matter of Lena A. GREENE, deceased.Kevin Greene, et al., petitioners-respondents;Keith B. Greene, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 15, 2011.

[932 N.Y.S.2d 544]

H. Scott Ziemelis, Goshen, N.Y., for appellant.ANITA R. FLORIO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

[89 A.D.3d 941] In a contested probate proceeding, the objectant appeals (1), as limited by his brief, from so much of an order of the Surrogate's[89 A.D.3d 942] Court, Dutchess County (Pagones, S.), dated November 9, 2010, as granted that branch of the petitioners' motion which was for summary judgment dismissing his objection to probate based on lack of due execution, and (2) from a decree of the same court dated November 9, 2010, which, upon the order, admitted the will to probate.

[932 N.Y.S.2d 545]

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the decree is reversed, on the law and the facts, that branch of the petitioners' motion which was for summary judgment dismissing the objection to probate based on lack of due execution is denied, that objection is reinstated, the order dated November 9, 2010, is modified accordingly, and the matter is remitted to the Surrogate's Court, Dutchess County, for further proceedings in accordance herewith; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree ( see CPLR 5501[a][1] ).

The decedent, Lena A. Greene, died on August 16, 2009, survived by three children as her distributees. On November 1, 2008, the decedent allegedly executed a will naming two of her children, Kevin Green and Karen Hinton, the petitioners herein (hereinafter together the petitioners), as co-executors, and executed a living trust, naming the petitioners as cotrustees. Neither the will nor the living trust indicated who drafted the documents, or who, if anyone, supervised the will execution. The will was witnessed by three people in the presence of a notary public. The will disposed of all of the decedent's assets by pouring them...