Opinion
December 28, 1959
Appeal from an order of the Surrogate's Court, Suffolk County, (1) granting respondent's application to be relieved of his default in filing and recording his notice of election to take in contravention of the will (Decedent Estate Law, § 18), and (2) permitting him to file and record such notice nunc pro tunc. Order reversed, with $10 costs and disbursements to appellant, payable by respondent personally, and application denied. More than 12 months having elapsed subsequent to the issuance of letters testamentary, the Surrogate had no power to relieve respondent of his default in filing and recording his notice of election ( Matter of Picone, 199 Misc. 1039, affd. 279 App. Div. 787; Matter of Bornstein, 199 Misc. 1043). Wenzel, Acting P.J., Beldock, Hallinan and Kleinfeld, JJ., concur; Murphy, J., deceased. [ 17 Misc.2d 254.]