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In the Matter of the Petition of Fred B. Smith to Prove the Last Will and Testament of Phebe R. Lowe, Late of the County of Kings, Fred B. Smith, as etc., of Phebe R. Lowe, Respondent William D. Dunham and John A. Dunham
Order of the Surrogate’s Court of Kings county denying the petitioner’s motion to set aside the notices of examination of the petitioner and Jessie F. Smith, his wife, and directing the examination to proceed as to items 1 and 2 only. Order in so far as it fails to provide for the examination as to item 3 affirmed, with ten dollars costs and disbursements to respondent, payable out of the estate. The examination, to the extent permitted, shall proceed on five days’ notice.
While the value of a testator’s estate is a material subject of inquiry on the issue of undue influence (Matter of Woodward, 167 N. Y. 28; Matter of Sperry, 138 Misc. 549), we cannot say the surrogate wrongfully exercised his discretion in denying the examination in the instant ease. The petition shows the testatrix died seized of no real property and that the value of her personal property does not exceed $9,000. It does not appear she died seized of other property or property of greater value.
Hagarty, Davis and Johnston, JJ., concur; Lazansky, P. J., and Carswell, JJ., dissent.