29 N.Y.2d 143 (1971)

A consent to probate, made following or simultaneously with an appearance in the proceeding, is essentially a stipulation and should be treated accordingly, allowing withdrawal for good cause such as fraud, collusion, mistake, accident, or some other ground of the same nature, provided the parties can be placed in statu quo.

Summary

The Frutiger case addresses the circumstances under which a waiver of citation and consent to probate can be set aside, allowing objections to a will. Two brothers, the decedent’s only distributees, signed waivers and consents at the request of the executor’s representatives shortly after the funeral. The brothers later sought to object to the will. The Surrogate initially allowed them to withdraw their consent, but the Appellate Division reversed. The Court of Appeals determined that the consent was essentially a stipulation that could be withdrawn for good cause, provided the parties could be returned to their original positions. The case was remanded to the Surrogate’s Court to consider whether the brothers had demonstrated sufficient cause to withdraw their consent.

Facts

Following Walter Frutiger’s funeral, his brothers, Ernest and Willard, met with representatives of the Endicott Trust Company (the executor) and its attorneys. The will and codicils were read, and the brothers were asked to sign waivers of citation and consents to probate. The purpose was allegedly to expedite payment of the decedent’s bills. The brothers were given copies of the will and codicils but not of the waivers. Shortly after, the brothers sought legal advice regarding the validity of the will. The will reduced the brothers’ share of the residuary estate compared to an earlier version.

Procedural History

The probate petition was filed approximately 32 months after the waivers were signed. A citation was served on the brothers, which was inconsistent with having valid waivers. The brothers filed objections. The waivers were only filed after objections were made, some 45 months after signing. The Surrogate’s Court initially allowed the brothers to withdraw their consent, finding that the proponent’s conduct implied the waivers were withdrawn. The Appellate Division reversed, finding no such agreement to withdraw the waivers. The case was appealed to the Court of Appeals.

Issue(s)

Whether the Surrogate’s Court properly set aside the appellants’ waivers of citation and consents to the probate of the will and codicils, thus permitting them to pursue objections to probate.

Holding

No, not definitively; because the consent to probate is essentially a stipulation, the Surrogate’s Court has the power to relieve a party from its terms for good cause, provided the parties can be placed in statu quo. The case was remitted to the Surrogate’s Court to determine if sufficient cause existed.

Court’s Reasoning

The Court of Appeals reasoned that the consent to probate, made in conjunction with an appearance in the proceeding, is akin to a stipulation. As such, it is subject to the court’s control and can be withdrawn under certain circumstances. The Court stated, “The court has control over stipulations and power to relieve from the terms thereof when the parties can be placed in statu quo. But the stipulation will not be destroyed without a showing of good cause therefor, such as fraud, collusion, mistake, accident, or some other ground of the same nature.” The court emphasized that the proponent had not changed its position based on the waivers, preserving the status quo. Furthermore, the proponent’s delay in disclosing the waivers contributed to any potential prejudice. The Court cited Foote v. Adams, 232 App. Div. 60, 63 stating, “It is sufficient if it appears that either party has inadvertently, unadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice.”. However, the Court noted the brothers needed to demonstrate a reasonable probability of success in their objections. The dissenting opinion argued that the brothers had not met their burden of proving fraud or misrepresentation in procuring the waivers and that the waivers should be enforced. The dissent emphasized the importance of waivers in the efficient administration of estates.