Decree reversed, with costs payable to both parties out of the estate, and proceeding remanded to the Surrogate's Court for further proceedings in accordance herewith.
The papers and evidence submitted in this proceeding did not satisfactorily establish that, due to physical and mental incapacity, Myra Smith's testimony could not be "obtained with reasonable diligence" (see SCPA 1405, subds 1, 2). Accordingly, a hearing is required to determine if there are sufficient...
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