In re Proving the Last Will & Testament of Hodgman

107 Misc. 70

Opinion

Fowler, S.

TMs is an application for an examination of a proponent of a will before trial of a contested probate, for the alleged purpose of preparing for trial. It is claimed to be justified under section 2770 of the Code of Civil Procedure and sections 870, 872 and 873 of the Code of Civil Procedure.' I am not satisfied that there is such a right to examine proponent before trial. The proceeding for probate is one in rent, and is a special proceeding. It is not an action at law. On the trial every opportunity is afforded of eliciting all the facts in an orderly way. I so held in Matter of Goodheart, Sur. Decis. 1916, p. 1133. The modern tendency to make probate of wills difficult and more technical than the tradition and custom of a thousand years warrants does not appeal to me. In a proceeding in rem the procedure is usually deliberate and adjourned from time to time as justice requires. There ought to be no room for surprise or trickery. The main party concerned in such proceedings is the state, which superintends and directs the inquisition for probate. This principle is being gradually lost sight of in probate courts in this state.

Application denied.