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In re the Probate of the Will of Gongwer

29 Misc. 2d 122 Court Surrogate’s Court, Westchester County, Decision date 1961-06-02 English

Delivered by John J. Dillon, S.

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p. 122
In the Matter of the Probate of the Will of Burr F. Gongwer, Deceased.
Surrogate’s Court, Westchester County,
June 2, 1961.
Havens, Wandless, Stitt é Tighe for petitioner. Serge Jarvis for respondent.

Proponent’s motion under rule 103 of the Rules of Civil Practice to strike out as sham and frivolous paragraph “third” of respondent’s answer and objections is granted.

Paragraph “ first ” of said pleading asserts undue influence and coercion in the execution of the propounded instruments and paragraph “ second ” raises an issue as to due execution. By paragraph “third” respondent, a son of decedent, challenges

p. 123
the validity of an Ohio divorce decree obtained by decedent and the validity of decedent’s remarriage to the person who is the proponent and sole beneficiary under the propounded instruments.

The validity of proponent’s marriage to decedent is unrelated to the validity of the propounded instruments as the last will of decedent. Proponent is directed, however, to cause a supplemental citation to be issued and served upon the person from whom decedent obtained a decree of divorce who is determined to be a necessary party to this proceeding.