Opinion
May 12, 1932.
Albert Mintzer, for the petitioner.
Herbert C. Smyth, Jr., for Herbert C. Smyth.
(1) The application for the examination of the subscribing witnesses to the will offered for probate is granted.
(2) The application for the examination before trial is granted as to Herbert C. Smyth, the proponent of the will, and Helen Gilmore and Louise Marthe, legatees named in the will. They are adverse parties to the proceeding and may be examined. ( Matter of Vail, 120 Misc. 430.) The application is denied, however, as to Emile Marthe and Irene Marthe. They are not legatees under the will, nor are they named in the objections as having exercised undue influence or practiced fraud upon the decedent. ( Matter of Levy, 198 A.D. 773.) The examination will be limited to items f, g, h, i, j, k and l contained in the order to show cause herein. Items a, b, c, d and e therein contained are denied. The information sought to be elicited by the examination under these latter items are matters upon which the proponent has the affirmative. ( Matter of Hodgman, 113 Misc. 215.) The examination will be further limited to events occurring prior to and including the execution of the will. ( Matter of Levy, supra.)
(3) The application for discovery and inspection is denied, with leave to renew if upon the examination of the parties before trial the proper and necessary instruments, documents and writings cannot be obtained by subpoena duces tecum.
(4) The application for an open commission to take the oral testimony of the persons referred to in the order to show cause who are not produced for examination and who are reported to be outside of the city of New York is denied in the discretion of the surrogate.
(5) All other relief prayed for in the moving papers is denied.
(6) The order to be entered hereon may contain provisions fixing the date of the examination of the subscribing witnesses and of the examination before trial, as well as a provision permitting an immediate and further application to this court in the event of undue delay upon the part of contestant or proponent. Proceed accordingly.