In re Proving the Last Will & Testament of Kimmerle

Schulz, S. Two motions were made by different parties for the same relief, namely, to vacate a notice which had been given by a contestant for the examination of witnesses before trial, upon various grounds stated. The provisions of the Civil Practice Act relating to such an examination are applicable to the Surrogate’s Court. (Surrogate’s Court Act, § 316; Matter of Levy, 198 App. Div. 773; People ex rel. Lewis v. Fowler, 229 N. Y. 84.) The probate proceeding is actually pending and objections have been filed; hence the notice is not premature. (Civ. Prac. Act, § 288; Matter of Levy, supra.) The matters upon which the contestant desires to examine the witnesses are set forth in the exhibit attached to the notice for the examination. As to those contained in paragraphs I to IV, inclusive, the burden of proof is upon the proponent, and not upon the contestant (Matter of McDonough, 201 App. Div. 203; Matter of Cottrell, 95 N. Y. 329; Matter of Martin, 98 id. 193), and the latter is, therefore, not entitled to an examination before trial as to "the same. (Kimball v. Budd Co., 215 App. Div. 724; Curtis v. Searles, 206 id. 287.) The matters set forth in paragraphs V and VI refer to an affirmative assault upon the validity of the will; the burden of proof is upon the contestant (Matter of Kindberg, 207 N. Y. 220; Matter of Martin, supra), and he is entitled to the examination he requests. (Klapp v. Merwin, 122 Misc. 708; affd., 209 App. Div. 843.) Those contained in paragraphs VII and VIII do not constitute an objection to the validity of the propounded paper, and hence no examination before trial should be had as to these matters. (Sands v. Comerford, 211 App. Div. 406.) The reference in the notice to Exhibit “ A ” attached to the same, and wherein the matters concerning which an examination is desired are specifically set forth, is a sufficient compliance with the provisions of the statute (Civ. Prac. Act, § 290, subd. 4), which requires that the matter upon which the person or persons are to be examined must be stated in writing in the notice for the examination. (Richmond v. Josephthal, 203 App. Div. 281.) The fact that the contestant has filed objections does not deprive him of his right to an examination. Legatees and devisees named in a will who have been served with notice of probate are parties to subsequent proceedings relative to the will, and as such may be examined. (Civ. Prac. Act, § 288; Matter of Vail, 120 Misc. 430.) Non-residents of the county and of the State may be examined. (Civ. Prac. Act, $ 300; Rockwell v. Leach & Co., Inc., 206 App. Div. [769] 632.) One of the notices of motion sets forth that two of the persons sought to be examined are non-residents of the county and have no office therein for the regular transaction of business, and that one of them is a non-resident of the State. No affidavit to that effect has been submitted. If it appears that such is the fact, and the parties decline to consent to an examination in Bronx county, an amended notice for such examination in compliance with section 300 of the Civil Practice Act may be served, and the probate will be stayed until the contestant has a reasonable opportunity to serve the same. The motions are, therefore, granted as to the matters referred to in paragraphs I to IV, inclusive, and in, paragraphs VII and VIII, but denied as to those set forth in paragraphs V and VI, and the said examination as to those matters is set down to take place before me on November twenty-third. Enter order on notice accordingly.