In re the Probate of the Will of Weston

Memorandum by the Court. It appeared on the trial that the proponent was the husband of the testatrix. The latter had been a widow with two grown daughters. She was wealthy. The marital career was most extraordinary. These parties were twice divorced and twice remarried in the space of two years. Before the first marriage, proponent signed an antenuptial agreement stating that he was marrying for love alone and waiving all claims that survival would give him to his wife’s estate. The third and last marriage was contracted a few months prior to the testatrix’ demise and at a time when she was suffering from an advanced stage of cancer, which condition was obvious and known to proponent. Less than one month prior to this last marriage, the antenuptial agreement was revoked with due formality. The will was prepared about three months later, and one month after execution she was dead. The will revoked a prior will of which the daughters were beneficiaries. Deceased’s estate consists largely of realty. A superficial reading would give the impression that the proponent and the daughters fared about equally in the distribution. Actually, the property left to proponent was paid for by the deceased by a bank loan in lieu of a mortgage. The loan remains a debt of the estate and proponent will receive the property unincumbered. The residual of the estate, in which the daughters and proponent share equally, will largely go to repayment of this loan, so that the daughters ’ share of the residual will be devoted to the payment for proponent’s bequest. The only issues on the trial were fraud and undue influence. We agree that these facts alone show neither. Nor does the record reveal anything unprofes 412 sional in the conduct of the attorneys who drew the will and saw to its execution. We do feel, however, that the background of the relationship which gave rise to the will was inadequately explored. If there was fraud or undue influence, it had its roots not in procuring the revocation of the antenuptial agreement and the execution of the will. In all probability, if it exists it is to be discovered in events antedating the final acts. The facts in regard to the rapidly recurring marriages and divorces and the facts in connection with the testatrix’ purchase of the real estate left to proponent—a deal which he arranged — are fields in which the answers to this extraordinary relationship are to be found. We do not know what such investigation will uncover, but we do feel that allowing this will to go to probate without such investigation could result in irremediable injustice. This action is taken pursuant to the authority granted this court by section 309 of the Surrogate’s Court Act, which allows a determination de novo as to all matters (Matter of Dunn, 261 App. Div. 1040, affd. 287 N. Y. 821). “ We have the power to grant a new hearing (Surr. Ct. Act, §§ 40, 309) if we find ' sufficient cause ’ (Surr. Ct. Act, § 20, subd. 6) of any kind. We are not confined as to ' cause ’ to 'fraud, newly discovered evidence, clerical error, ’ mentioned in section 20.” (Matter of Blumenstiel, 248 App. Div. 533, 544-545; see, also, Matter of Falvey, 7 A D 2d 476.) The right to reopen or modify a decree in the interest of justice is not open to question (Matter of Fuller, 227 App. Div. 801, affd. 254 N. Y. 519; Matter of Pratt, 233 App. Div. 200, 207). In effect we are remitting because significant matters are not presented. This is a recognized power. (Matter of Teed, 59 Hun 63; 5 Warren’s Heaton, Surrogates’ Courts [6th ed.], § 452, par. 6 [c], p. 60.)