Lowe v. Taylor

254 A.D. 755, 4 N.Y.S.2d 237, 1938 N.Y. App. Div. LEXIS 7484

Opinion

Order denying the application of the petitioners for an order (formerly called order of prohibition) restraining the surrogate of Orange county from proceeding in alleged excess of jurisdiction, unanimously affirmed, with ten dollars costs and disbursements. In the proceeding to probate a will, it appears that the testimony of the attesting witnesses is disappointing to proponents, for they are not willing to state that the will was duly published in their presence by the testatrix. This presents no reason why the court should advise the surrogate as to rulings on the admissibility of evidence in the future course of the proceeding. If it eventually turns out that the proponents are aggrieved, their remedy will be by appeal. Neither on the law nor in the exercise of discretion should the order applied for be granted. Present — Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ.