Opinion
July 5, 1966
In a proceeding to settle judicially the account of the executor of Alveita Patterson, deceased, the executor appeals from an order of the Surrogate's Court, Westchester County, entered December 7, 1965, which, upon an infant beneficiary's application, vacated a prior decree of said court, entered February 28, 1961, settling said account, and restored the proceeding to the calendar. Order reversed on the law, without costs, and application granted to the extent of directing that the issues of fraud, estoppel and laches raised by the application be determined at a plenary hearing to be held by the court; and proceeding remitted to the court below for entry of an appropriate order accordingly, fixing the date of such hearing. No questions of fact have been considered. In our opinion, the questions of fraud, estoppel and laches which are raised by the application of the infant beneficiary under the will, and the opposing papers of the executor, should be determined only after a hearing at which testimony may be received, subject to cross-examination ( Matter of Wechsler, 152 Misc. 564; Matter of Lautz, 128 Misc. 710; Dege v. Mascot Realty Corp., 243 App. Div. 546). Ughetta, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.