In re the Estate of Smolley , 144 A.D.2d 366 ( 1988 )

In a probate proceeding, the petitioner appeals from so much of a decree of the Surrogate’s Court, Queens County (Laurino, S.), entered September 25, 1987, as denied that branch of his petition which sought his appointment as executor and the issuance of letters testamentary to him.

Ordered that the decree is reversed insofar as appealed from, on the law, without costs or disbursements, and the petition is granted.

The Surrogate’s finding that the petitioner is not competent to serve as executor by reason of improvidence (see, SCPA 707 [1] [e]) is without support in the record. Neither the fact that the petitioner, an attorney, employed an attorney to assist him by providing legal services to the estate, nor the fact that the petitioner did not enter into a retainer agreement with the attorney he so employed, without more, constitutes sufficient grounds for denying the issuance of letters testamentary to the petitioner, the named executor under the will sought to be probated (see, SCPA 707 [1], [2]; 711; see also, Matter of Flood, 236 NY 408; Matter of Leland, 219 NY 387). Mangano, J. P., Brown, Sullivan and Harwood, JJ., concur.