Opinion
January 30, 1929.
Grace Humiston, for the contestant.
Abraham Leichter, for the proponent.
John R. McMullen, special guardian.
This is an application by the contestant of the will under section 141 of the Surrogate's Court Act, for the examination of persons stated by the contestant to be "material and necessary witnesses." They are not the subscribing witnesses to the will, and the latter have heretofore been examined by the contestant under the statute above mentioned. It is contended that the examination of the subscribing witnesses shows the necessity of now examining the four persons named in the present petition, one of whom is the executor named in the will, and another of whom is the executor's wife and the residuary legatee under the will, as well as one of the persons charged in the objections with undue influence.
The application is denied, without prejudice to contestant's right to examine the executor and his wife as adverse parties. ( Matter of Briggs, 180 A.D. 843; Matter of Carter, No. 1, 193 id. 355; Matter of Vail, 120 Misc. 430; Matter of Dooper, 124 id. 411; Matter of Rothstein, 133 id. 598.) In the Briggs case the court limited the class of persons to be examined under section 2611 of the Code of Civil Procedure (now Surrogate's Court Act, § 141) to the subscribing witnesses, and any other witnesses produced by the proponent. Because the executrix had not offered to testify at the examination, the appellate court held that it was error to have permitted the contestant to examine her. In the present case, none of the persons whose examination is now sought were produced by the proponent on the examination held under section 141 of the Surrogate's Court Act. None of them, therefore, can now be examined as witnesses. As the papers show the existence of the necessary jurisdictional facts, however, the order to be entered hereon may direct the executor and his wife to submit to an examination before trial as adverse parties. Submit order on notice accordingly.