In re the Estate of Teller , 277 A.D.2d 1016 ( 1950 )

Order entered July 13, 1950, amended by striking therefrom the words “within twenty days after service of a copy of the order herein with notice of entry thereof ”. In all other respects, motion denied, without costs. Memorandum: Since no citation has yet been issued and served upon the interested parties, that part of the order of this court which reads: “within twenty days after service of a copy'of the order herein with notice of entry thereof ” should be stricken from the order. The motion to that extent should be granted, and in all other respects the motion should be denied, without costs. We have before us no pleading other than the petition and cannot as requested state the issues to be tried. That is for the trial court. We passed upon the sufficiency of the petition. We held, as stated in our memorandum, that where fraud is alleged as the basis upon which the relief is sought, it is not necessary to allege facts sufficient to afford a reasonable probability of success in the prospective will contest. The anticipated questions of further practice set forth in the motion papers were no part of this appeal, and if and when they arise should be determined in the first instance in the Surrogate’s Court. Present — Taylor, P. J., MeCurn, Kimball and Piper, JJ. [See ante, p. 937; post, p. 1160.]