Opinion
October 3, 1928.
Isador Feldstein, for the petitioner.
Jenks Rogers [ Abraham Benedict and Gustavus A. Rogers of counsel], for the contestant.
This is a motion by the proponent of the will, probate of which is being contested, for an order vacating a notice of examination of such proponent served upon him by the contestant as to items 1 and 3 of said notice. The contestant filed four objections to the probate of the will. The first and third respectively refer to testamentary capacity and due execution. The second objection charges undue influence and the fourth objection is predicated upon fraud and deceit. The contestant submits that, under the authority of section 141 of the Surrogate's Court Act the motion should be denied. That section refers to an examination before objections have been filed and has no application to the examination now sought to be had which is before trial and is brought under the provisions of section 288 of the Civil Practice Act. As to items Nos. 1 and 3, which refer to testamentary capacity and the proper execution of the will, the burden of proof is upon the proponent. The contestant is entitled to examine such proponent only upon the questions as to undue influence and fraud upon which issues he has the affirmative. ( Matter of Hodgman, 113 Misc. 215; Standard Bank v. American Union Bank, 203 A.D. 613; Matter of Martinez, N.Y.L.J. April 27, 1923.) The motion to vacate the notice of examination as to items 1 and 3 is granted. The examination will proceed on items 2 and 4. Submit order on notice accordingly.