In re the Estate of Diamond

This is an appeal from an order of the Rensselaer county surrogate denying the application of the appellant, the grandson of the testator, to vacate a decree admitting to probate the last will and testament of the decedent dated October 18, 1935. The deceased died on November 22, 1935; he was a widower. Edna L. Smith is his only child and she has two children, Luis Smith and Herford A. Smith. Herford A. Smith is the petitioner herein. The will probated was made on the 18th day of October, 1935, while the decedent was very sick and from which sickness he subsequently died. The will was probated immediately upon his death without notice to the grandson who makes this petition for a reopening. Substantial grounds were presented for reopening the probate proceedings. (Matter of Smith, 95 N. Y. 516; Matter of Carter, 199 App. Div. 405.) Order reversed, on the law and facts, [919] and motion to reopen proceeding granted, with costs to the appellant payable out of the estate. Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.