In re the Will of Lord

36 Misc. 2d 302, 232 N.Y.S.2d 681, 1962 N.Y. Misc. LEXIS 2859

Opinion

Harry G. Herman, S.

In this accounting proceeding the pleadings raise an issue as to whether or not a son who was adopted by a son of testatrix and the children of said son are included within the term “ lineal descendants” as referable to the descendants of testatrix. The pleadings also raise an issue as to whether a construction of the will as including an adopted child and children of an adopted child is presently premature and academic or whether such determination should await the occurrence of the contingency which would render a construction essential.

The special guardian for the minors other than the children whose parent was an adopted child has applied for an order of discovery and inspection pursuant to section 324 of the Civil Practice Act as to certain papers and memoranda.

The application is granted and the attorneys for the executor and trustee are directed to produce for discovery and inspection by both special guardians and the attorneys for the appearing parties any and all papers, memoranda and writings in their custody or under their control bearing upon the intention of testatrix, with permission to such attorneys and special guardians to prepare copies or transcripts thereof.

Upon ascertaining the result of the discovery and inspection the court will determine whether it will now construe the will or such construction should await the occurrence of the contingency which would render a construction essential.