
    In the Matter of the Probate of the Alleged Last Will and Testament and Codicil Thereto of Luella J. Roberts, Deceased. Martha Matilda MacBain, Appellant, Respondent; Frederick M. Whitney and Another, Respondents, Appellants; The Pleasant View Home and Others, Respondents.
    Fourth Department,
    May 4, 1932.
    
      Eugene Van Voorhis, for the appellant, respondent, Martha Matilda MacBain.
    
      Werner, Harris & Tew [George H. Harris of counsel], for the respondent, appellant, Frederick M. Whitney.
    
      James G. Dale, special guardian for the respondent, appellant, Maurice Flanders.
    
      Ralph H. Gulley, for the respondent First Church of Christ, Scientist, Rochester, N. Y.
    
      Harris, Beach, Folger, Bacon & Keating, for the respondents Rochester Friendly Home and Pleasant View Home.
   Per Curiam.

The releases and agreements which the contestant executed in connection with the transfer of decedent’s real property fall far short of constituting an estoppel in pais, and do not prevent her from interposing the objections which she has filed to the probate of decedent’s will. Neither can we say on the affidavits before us that the objections which have been stricken out by the surrogate are false and sham. Mr. Whitney would be incompetent, under section 347 of the Civil Practice Act, to testify on a trial as to many of the facts which he sets forth in his affidavit. On a motion of this character evidence which would be inadmissible on a trial cannot be considered. The issues raised by the objections and reply should be tried in the regular way, and not be disposed of on conflicting and unsatisfactory affidavits. The contestant should have her day in court.

The order, so far as appealed from by the contestant, should be reversed, with costs, and the motion denied, with costs. The order, so far as appealed from by the proponent and the legatees named in the will, should be affirmed.

All concur;. Sears, P. J., not sitting.

Order or decree so far as appealed from by contestant reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order or decree so far as appealed from by proponent and legatee affirmed, with ten dollars costs.  