Opinion
July 5, 1966
In a contested probate proceeding, the proponent Charles Langbein appeals from an order of the Surrogate's Court, Kings County, entered December 30, 1965, which granted the contestant Edward E. Langbein's motion for a protective order (CPLR 3103) vacating proponent's notice for discovery and inspection of copies of contestant's Federal and State income tax returns for the years 1953 through 1964, and of the books and records of account of Langbein Giftwares from 1953 through 1964, upon the ground that the proof sought to be discovered therefrom was neither necessary nor material to the prosecution of proponent's prima facie case. Order affirmed, with $10 costs and disbursements payable out of the estate. No opinion. Ughetta, Acting P.J., Christ, Hill and Rabin, JJ., concur; Benjamin, J., dissents and votes to reverse the order and to deny contestant's motion, with the following memorandum: Under all the circumstances of this case, I think the proof sought to be discovered by proponent is relevant, material and necessary on the issues of testamentary capacity and undue influence, since it would support his contentions (a) that the testator knew the objects of his bounty and what he was doing when he left only $1,000 to contestant, and (b) that this $1,000 gift was not the result of undue influence or lack of testamentary capacity, but rather of the history of intrafamily financial transactions and inter vivos gifts.