Opinion
August 13, 1943.
Alvin T. Sapinsley for Barton H. Lemlein, contestant, for motion.
Cornell S. Dikeman for Alexander Holman and another, proponents, opposed.
Jesse R. Bacharach for Edna Sobrow, residuary legatee, opposed.
Franklyn Ellenbogen for Madeleine Berkman, beneficiary.
By decision in Matter of Korn ( 265 A.D. 987), the practice which theretofore had been followed of denying to objectant who alleged undue influence a right of examination into the mental capacity of the deceased at the time of the execution and publication of the propounded will was held invalid and an examination by a contestant into that subject matter was allowed. In the Korn case ( supra) the objections were in the usual form. An application was made to obtain an order for the examination of the proponents and on that motion item 2 listed as a subject matter for examination "The mental capacity and condition of said decedent prior, at and after the time of the alleged execution and publication of the instrument herein sought to be propounded as his Last Will and Testament." The order of this court denied the prayer of the contestant for an examination under this paragraph. The Appellate Division reversed and allowed such examination. That decision requires the granting of the present application in all respects.
Submit, on notice, order accordingly.