
    In the Matter of the Estate of Emma Vonhaus, Deceased.
    Surrogate’s Court, New York County,
    December 20, 1937.
    
      
      Otto Dommasch, for the executor.
    
      Oberwager & Oberwager, for the Evangeline Lutheran Zion Church.
    
      Nathan J. Stein, for the petitioners.
   Delehanty,' S.

Deceased was approximately eighty years of age and physically infirm. There is some indication that she was also mentally infirm. Her will was drawn by a lawyer whom she had never seen. This lawyer was brought in for the preparation of the will by the sexton of the church which is the sole beneficiary of the estate. The lawyer received his instructions not privately but in the presence of the sexton, the pastor of the same church and a neighbor. All of these remained with deceased while the lawyer left and had the will typed in his office nearby. All three were present when the will was signed. The rule in Marx v. McGlynn (88 N. Y. 357) seems to be applicable to the transaction.

The proof establishes beyond question that the parties interested in the probate of the will were well aware of the existence of the petitioners and had means of locating them had they chosen to make effort to do so. As to one of the petitioners there is no proof whatever that he knew of the probate proceeding. As to the other petitioner there may be some reason to suppose that he was advised of the probate proceeding. That is surmise, however. At least it is established that the affidavits which are part of the probate file and which purport to show lack of knowledge of relatives did not disclose all that was known on the subject. For the special reasons inherent in this set of facts and for the reasons more broadly stated in the decision in Matter of Westberg, simultaneously decided (165 Misc. 728), the decree of probate is vacated. The petitioners are given leave to file objections within ten days after the decree in this proceeding is signed. If an issue is raised by such objections a trial of the issue will proceed in due course.

Submit, on notice, decree accordingly.  