In re the Estate of Kramek

All concur, except McCum and Kimball, JJ., who dissent and vote for modification in accordance with the following memorandum: The facts set forth in the tax schedules were not litigated when the pro forma order was made but were assumed to be true. The order made within two years modifying the pro forma order was within the power of the Surrogate. (Matter of Willets, 119 App. Div. 119, affd. 190 N. Y. 527; Matter of Troescher, 265 App. Div. 971, affd. 291 N. Y. 760; see, also, Tax Law § 249-aa.) The petitioner having moved to modify the pro forma order, the burden was upon her to show facts…