In re the Estate of Friedman

133 Misc. 560, 232 N.Y.S. 430, 1928 N.Y. Misc. LEXIS 1212

• Court: New York Surrogate's Court
• Decided: October 8, 1928
• Status: Published

Opinion

Foley, S.

This is an application to vacate a notice of examination before trial, as an adverse party, of Johanna Jensen, the proponent of the will.

1. It is contended that she is not an adverse party within the meaning of section 288 of the Civil Practice Act, because she is not named in the objections as a party who exercised undue influence, citing Matter of Levy (198 App. Div. 773) and Matter of Miller (N. Y. L. J. Sept. 28, 1928). In these cases, however, the persons sought to be examined by the contestants were not proponents of the wills, and, not haying been named in the objections, were not adverse parties. A 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 Johanna Jensen is a proper person to be examined before trial. (Matter of Carter, No. 1, 193 App. Div. 355.)

2. The further contention that the examination should be limited to the questions of fraud and undue influence is correct and the order to be entered hereon should so provide. (Matter of Hodgman, 113 Misc. 215.)

3. The objection to the language of the notice is overruled. The case cited (Gaydica v. Szemko, 219 App. Div. 835) has no application to a probate proceeding.

Submit order on notice accordingly.