In re Foos

2 Dem. Sur. 600

• Court: New York Surrogate's Court
• Decided: March 15, 1884
• Status: Published

Opinion

The Surrogate.

As I understand it, the company alone has no access to the alleged will. It canhe obtained only by the co-operation of the superintendent of the vaults, who has the key to that containing the receptacle where the will is placed, and the clerk of the deceased who has the key to the latter.

I am asked to make the order sought, directing the company to deliver the will to Mr. Whitehead, one of petitioner’s counsel, to produce to this court. I know of no statute authorizing me to make such order, and, therefore, I should be powerless to enforce obedience to it, if made. Courts of limited jurisdiction, like this, cannot be too cautious about assuming powers they do not possess.

The applicant, claiming to be the executor, is not, however, without remedy. On filing a proper petition for probate of the will, a subpoena duces tecum, will be issued, directed to the proper persons, requiring them to produce the will in tins court, on the return day of the citation issued in such cases. Obedience to the requirements of the subpoena maybe enforced, if necessary.

Application denied.