In re the Estate of Wheeler — 13 A.D.2d 528

Majority

p. 528

In the Matter of the Estate of Lucy E. Wheeler, Deceased. In the Matter of the Accounting of Robert P. Smith, as Executor of Lucy E. Wheeler, Deceased. Myrtle G. Ely et al., Appellants; Robert P. Smith, as Executor of Lucy E. Wheeler, Deceased, et al., Respondents.

Motion by respondent executor, pursuant to section 309 of the Surrogate’s Court Act, (1) to incorporate into the record on appeal a certain “newly discovered” letter written to him by the deceased a few days before the execution of a codicil to her will, or, in the alternative, (2) to appoint a Referee to hear and report as to whether such letter should be made a part of the record. Motion denied. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.