In the Matter of the Final Accounting of Elizabeth Bartlett, as Administratrix of the Estate of Louis Leach, Deceased, Appellant. Floyd Leach, Respondent

In the Matter of the Final Accounting of Elizabeth Bartlett, as Administratrix of the Estate of Louis Leach, Deceased, Appellant. Floyd Leach, Respondent. [MAJORITY] Appeal from a decree of Surrogate’s Court, Chenango County. The respondent Floyd Leach is a specific legatee under the will of Louis Leach and he claims an interest in the residuary estate under that will. On September 30, 1957, upon payment of the specific legacy, he executed a release to the administratrix of “all further liability to me”. Claiming a mistake on his part and alleging that the release was “ obtained by trick or device and * * * fraudulently by the said Administratrix ” he applied to the Surrogate for an order setting the release aside. The administratrix filed an answer objecting to the Surrogate’s jurisdiction, denying these allegations, and denying any interest by respondent in the residuary estate. Without any trial or hearing of evidence the Surrogate granted an order declaring the release void as to its effect on respondent’s claimed interest in the residuary. The Surrogate was required to try the issues raised by the answer. His summary determination is not warranted. Order reversed, with $10 costs to appellant. Foster, P. J., Bergan, Coon, Gibson and Herlihy, JJ., concur.