Opinion
March 15, 1976
In a probate proceeding, the appeal is from a decree of the Surrogate's Court, Queens County, dated April 4, 1975, which, after a nonjury trial, inter alia, (1) dispensed with the taking of the testimony of one of the attesting witnesses to the will and (2) admitted the will to probate. Decree reversed, with costs payable to both parties out of the estate, and proceeding remanded to the Surrogate's Court for further proceedings in accordance herewith. The papers and evidence submitted in this proceeding did not satisfactorily establish that, due to physical and mental incapacity, Myra Smith's testimony could not be "obtained with reasonable diligence" (see SCPA 1405, subds 1,2). Accordingly, a hearing is required to determine if there are sufficient grounds upon which to dispense with the taking of the said witness's testimony by commission. Martuscello, Acting P.J., Latham, Cohalan, Damiani and Titone, JJ., concur.