Opinion
December Term, 1897.
Elihu Root, for the appellant.
Frank A. Acer, for the respondent.
This action was begun by the service of the summons without the complaint on the defendant Paine. The object of the action is to establish the last will and testament of one Ruby Tilden Paine, and the action is brought by a sister of and a beneficiary under the will of said testatrix. An order was granted directing that the defendant Paine be examined, and that his deposition be taken for the purpose of enabling the plaintiff to frame her complaint. Thereafter a motion was made to vacate such order, which was granted because of defects in the plaintiff's affidavit, and also upon the merits, in that it appeared from such papers that she was sufficiently informed of the facts to prepare a complaint; and from the order entered thereon this appeal is taken.
The affidavit on which the order for the examination was based complied in every respect with the formal statutory requirements; but the defects consist of certain allegations which are made upon information and belief. With respect to such defects, while it is true, as claimed, that some of the allegations are upon information and belief, and the affidavits of the informants are not presented nor their absence reasonably accounted for, yet it will be found upon examining the plaintiff's affidavit that the principal and essential allegations are stated positively or are based upon information derived from the defendant. Thus, the parties to the action and their residences, and which of them have appeared and by whom, the object of the action, the place of trial, and the heirs at law and next of kin of the deceased are positively averred. The plaintiff then, upon information and belief, states the value of the personalty, and that she "has been informed by the defendants Susan T. Sabin, Emily R. Tilden and H. Tilden Swan that, on the 16th day of May, 1894, * * * in their presence, both said Mr. and Mrs. Paine executed and published their wills; that after the execution of said Ruby Tilden Paine's will she handed it to the defendant Willis S. Paine in their presence; * * * that since the said 16th day of May, 1894, the said Ruby Tilden Paine has, on several occasions, in conversation with deponent referred to the fact that she had made her will * * * and deponent is informed and believes that similar references were made in conversation with other persons down to a few days before said Ruby Tilden Paine's death." This is followed by allegations that, after the death of said Ruby Tilden Paine, while going from his residence to the safe deposit company for the averred purpose of getting the will, the "defendant Paine informed deponent and her said sister that the will contained various provisions which he mentioned specifically."
Without referring in further detail to the contents of the affidavit, it will be noticed, as said, that every material fact or formal statutory requirement is stated either upon positive knowledge or upon information alleged to have been derived from the defendant; and the fact that the additional averments are made upon information and belief, claimed to have been received from parties whose affidavits are not presented, does not render the affidavit fatally defective, because we can treat such averments as surplusage, and, so considered, the affidavit is otherwise sufficient.
Upon the merits we think that the order for the examination should not have been vacated. It does not appear that the plaintiff has knowledge of the various provisions of the alleged will. On the other hand, the allegations are sufficiently definite to justify the inference that the defendant has such knowledge. The plaintiff states generally that she has ascertained, in addition to the fact that a will was made, that the property went to her family, but to what particular members thereof or in what proportions she does not know. As it is essential in a complaint of this kind that the provisions of the will claimed to have been lost should be set forth, the plaintiff is entitled to obtain the information essential to frame her complaint from those who may have knowledge of such facts.
The order should accordingly be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for examination denied, with ten dollars costs, but with leave to defendant to move to limit the scope of the examination as he may be advised.
VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination denied, with ten dollars costs, but with leave to defendant to move to limit scope of examination.