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  5. 32 A.D.2d 328 (1969)
 

MATTER OF HELLER-BAGHERO

32 A.D.2d 328 (1969)

In the Matter of the Probate of The Will of Rudolf Heller-Baghero, Deceased. Stefanie Heller et al., Appellants; Theodore Mattern, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

July 8, 1969.

Attorney(s) appearing for the Case

Hans Harnik of counsel (Robert Morrow with him on the brief; Wachtell Manheim & Grouf, attorneys), for appellants.

Helmut J. Kraemer of counsel (Theodore Mattern, in person, attorney), for respondent.

STEVENS, P. J., and EAGER, J., concur with CAPOZZOLI, J.; STEUER, J., dissents in opinion in which NUNEZ, J., concurs.

CAPOZZOLI, J.

On October 28, 1968, subsequent to the time when the will of the decedent, dated July, 1962, was offered for probate in the Austrian court, this proceeding was begun in the Surrogate's Court of New York County for the probate of a later will of the same decedent, which was dated February 5, 1964. This last will was executed here in New York, and recites the fact that the decedent is a resident here...

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