Hutchinson v. McCaddon

157 A.D. 228, 141 N.Y.S. 809, 1913 N.Y. App. Div. LEXIS 5873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1913
• Status: Published

Opinion

Rich, J.:

This appeal is by the defendants Joseph T. and Theodore D. McOaddon, individually and as executors and trustees under the last will and testament of Ruth Louisa Bailey, deceased, and by the defendant Lillie Elizabeth Harper, from so much of an order as grants discovery and inspection of the books, papers and documents of the estate of James A. Bailey, deceased (the husband of Ruth Louisa Bailey, deceased), all of the books, papers and documents of said Ruth Louisa Bailey, deceased, and all the books, papers and documents of said Joseph T. and Theodore D. McOaddon, as executors and trustees, together with an injunction restraining the executors pendente lite from making any disposition of the principal of the estate of their testator. This action is brought under the provisions of section 2653a of the Code of Civil Procedure to determine the validity of the probate of the alleged will of said Ruth Louisa Bailey.

The complaint alleges upon information and belief that the will was not executed in conformity with law, the mental incapacity of the testatrix, and undue influence. The petition and accompanying affidavits upon which this order was granted give conclusions, based upon information and belief, with no facts stated as the source of the information. Nowhere are any facts alleged tending to show a prima facie case, or even of any reasonable probability that the plaintiff can succeed in the action. The only allegation in the petition that there are any books or documents in the hands of the executors and trustees is that the estate of the testatrix came to her largely from her deceased husband, and this averment is upon information and belief. No specific books, papers or documents are specified as possessing any materiality which could be used upon the trial of the action for any important purpose. The moving papers do not disclose any use which the plaintiff intends to make of any information she may acquire on a discovery, except a suggestion that it may be applied to some future application to the court, the nature of which is not disclosed. It is not pretended that the executors have made any improper disposition of the property which came into their hands, or that they are likely to do so.

The moving papers fail to show a proper case for so much of the order as is appealed from; it was improperly made and must be reversed.

The order in so far as appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Jenks, P. J., Burr, Thomas and Stapleton, JJ., concurred.

Order in so far as appealed from reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.