144 Misc. 254 | N.Y. Sur. Ct. | 1932
The contestants apply for an examination of the subscribing witnesses to the will. The application is resisted by the proponent on the ground that section 141 of the Surrogate’s Court Act limits the right to an examination to a time prior to the filing of objections. Counsel for the proponent contends that since the contestants have already filed objections in the pending probate proceeding, the right is lost to the contestants. The application is granted. I find no support in the terms of the section for any such narrow construction.
The question raised here has been decided by the Appellate Division, First Department, adversely to the claim of the pro
On the other hand, the preliminary examination before trial sometimes establishes invalidity or forgery in the execution of the propounded paper and after the trial probate is denied. I find no evidence of legislative intent to prohibit the right of examination after the fifing of objections by the amendment made to section 141 of the Surrogate’s Court Act in 1925 (Laws of 1925, chap. 575.) The amending measure was carelessly drawn. Its defects have even crept into the official edition of the Session Laws of 1925, for it is there stated in the footnote that the last phrase of the section which reads “ without first fifing objections to the probate of such will ” is new matter. The statement is incorrect, for that language had been included in the section previously to the amendment.
There was added by the chapter mentioned the following italicized matter: “ any party to the proceeding, before filing objections to the probate of said will, may request the oral examination of the subscribing witnesses thereto and may examine such witnesses * * *.” The italicized language added nothing to the prior language of the section which previously permitted examination before objections were filed. It was merely confirmatory of the
Submit order on notice granting the application accordingly.