In re the Estate of Clenen

New York Surrogate's Court

In re the Estate of Clenen

133 Misc. 256, 232 N.Y.S. 431, 1928 N.Y. Misc. LEXIS 1213

New York Surrogate's Court·Decided November 12, 1928·Published

Opinion

O’Brien, S.

This is an application to vacate a notice of examination before trial of Louis A. Queen as an adverse party. Said Louis A. Queen is the proponent of the will. It is contended that he is not an adverse party within the meaning of section 288 of the Civil Practice Act, because he is not named in the objections as a party who exercised fraud or undue influence. Such contention is without merit. The proponent of a will is always a party to the probate proceeding and upon the filing of objections automatically becomes an adverse party. I hold, therefore, that Louis A. Queen is a proper person to be examined before trial. (Matter of Carter, No. 1, 193 App. Div. 355; Matter of Friedman, 133 Misc. 560.) The scope of the examination, however, will be limited to acts at or prior to the execution of the will and further limited to questions of fraud and undue influence, on which the contestant has the affirmative. (Matter of Hodgman, 113 Misc. 215.)

Submit order on notice accordingly.

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O’Brien, S.

This is an application to vacate a notice of examination before trial of Louis A. Queen as an adverse party. Said Louis A. Queen is the proponent of the will. It is contended that he is not an adverse party within the meaning of section 288 of the Civil Practice Act, because he is not named in the objections as a party who exercised fraud or undue influence. Such contention is without merit. The proponent of a will is always a party to the probate proceeding and upon the filing of objections automatically becomes an adverse party. I hold, therefore, that Louis A. Queen is a proper person to be examined before trial. (Matter of Carter, No. 1, 193 App. Div. 355; Matter of Friedman, 133 Misc. 560.) The scope of the examination, however, will be limited to acts at or prior to the execution of the will and further limited to questions of fraud and undue influence, on which the contestant has the affirmative. (Matter of Hodgman, 113 Misc. 215.)

Submit order on notice accordingly.

In re the Estate of Clenen, 133 Misc. 256, 232 N.Y.S. 431, 1928 N.Y. Misc. LEXIS 1213 (N.Y. Super. Ct. 1928).

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