In re the Estate of Hesselberg

Delehanty, S. A distributee of deceased seeks in this application to open a default deliberately suffered by him in the proceeding for the probate of deceased’s will. It is quite apparent from his moving papers and from the argument advanced in his behalf by his counsel that his present application is made not because he has any information which warrants a belief that he could challenge the will successfully but because since his default he learned that another distributee who had filed objections has entered into an 498 agreement with proponents under which she may receive some portion of the net estate. It is quite clear to the court that the present application is made in the hope that if leave to open the default is granted the moving party may obtain some similar agreement. The moving affidavits are wholly insufficient to establish any likelihood of success. On the argument it was urged that in the examination of the proponents and the subscribing witnesses there would be found support for the claim that a successful attack upon the will could be made. Pursuant to request of the mov ng party the court has read the testimony given in that examination. Far from supporting the application the minutes of that examination substantially negative the possibility of any successful attack upon the will by any person. There is here, therefore, no basis upon which the court should grant to the moving party an opportunity to speculate in a litigation over deceased's will. (Matter of Jones, 147 Misc. 898; affd., 240 App. Div. 817; appeal dismissed, 264 N. Y. 401. See also 155 Misc. 49; Matter of Elias, 222 App. Div. 728; Matter of Leslie, 175 id. 108.) The application is denied, with costs of the motion. Submit, on notice, order accordingly.