In re the Probate of the Will of Ferris

193 Misc. 1044, 85 N.Y.S.2d 763, 1948 N.Y. Misc. LEXIS 3859

Opinion

Delehanty, S.

Heretofore a notice of examination of two named individuals was served in this contested probate proceeding. The persons designated to attend on the examination are the subscribing witnesses to the will. They were heretofore examined under section 141 of the Surrogate’s Court Act. Such examinations, under the practice of the court, have heretofore been limited strictly to the circumstances attending the preparation of the propounded instrument, its custody and its execution. The notice for examination seeks investigation of matters which may be pertinent on the trial of the objections. The motion to vacate is made on the ground that the witnesses were heretofore examined as stated.

The motion to vacate is in all respects denied. Since the subscribing witnesses to a will are official witnesses chosen by deceased to validate his testament there exist in respect of them in every case the “ special circumstances ” which authorize an examination of them under section 288 of the Civil Practice Act even though any such witness be not a party in the strict sense. Indeed, since the decision in Dorros, Inc., v. Dorros Bros. (274 App. Div. 11) it would be appropriate to permit in an examination under section 141 of the Surrogate’s Court Act a full inquiry in respect of all matters known to the subscribing witnesses which might be relevant on a contest of the will. Since they are depended on by a testator as guarantors of the validity of his testamentary act there is warrant for requiring them to disclose at the first opportunity every fact within their knowledge bearing on the worth of their guarantees. Since their knowledge of the matters outlined in the notice for examination may affect their testimony on the trial, they should submit to the examination sought.

Submit, on notice, order accordingly.