
    In the Matter of the Application of Frank Gick, as Executor, etc., of Rosina Stumpf, Deceased, Respondent, for a Discovery against Frank Stumpf, Appellant.
    Third Department,
    May 2, 1906.
    Surrogate — in proceeding for discovery against one holding property of •an estate the surrogate may take evidence although the answer puts title in -issue, . ■ .
    Since the amendment -made in 1'903 to sections 2707-2710 of the Code of Civi Procedure, -the surrogate has power to proceed with the -examination of one charged with having property belonging to an estate although the answer of such person puts the question of title in issue. The surrogate may examine such person as, to facts alleged in the answer and is not hound by the allegations of the answer as formerly.
    Appeal by the defendant, Frank Stümpf, from an order of the Surrogate’s Court -of the county of Saratoga, entered in said Surrogate’s Court or. the 22d day .of December., 1905, denying the defendant’s -motion to dismiss the above-untitled proceeding, .and also from an order entered in said Surrogate’s Court on the 23d day of January, -1906, resettling said first-mentioned order.
    
      George B. Lawrence, for the appellant.
    
      Walter A. Chambers, for the respondent.
   Cochrane, J.:

Pursuant to section 2707 of the Code of Civil Procedure the petitioner, who.is the executor of the last will and testament of Bosina Stümpf, deceased, presented to. the Surrogate’s -Court a petition wherein he alleged that- the appellant Frank Stumpf had in his possession money and. .property.belonging to the estate of the said deceased and that the appellant withheld the same from the petitioner together with documents and papers belonging to the deceased, and all knowledge and information relating thereto and wherein the petitioner prayed an inquiry respecting such property and that the said appellant be cited to attend such inquiry and be examined accordingly. A citation was thereupon issued and on the return thereof the appellant submitted a written answer duly veri-, tied putting in issue the title to the property mentioned in the petition and claiming ownership of such property and thereupon he demanded a dismissal of the proceeding. From the order refusing to dismiss the proceeding this appeal was taken.

It is the contention of the appellant that on the submission of such answer placing in issue title to the property in question it was the duty of the surrogate to dismiss the proceeding and that lie had no power to proceed with, the examination of the appellant. Section 2709 of the Code of Civil Procedure relating to tins proceeding provides that: On the attendance of a person to whom a citation is issued, as prescribed in this article, he may submit an answer duly verified showing cause why the examination should not proceed. The surrogate may then dismiss the proceeding or-direct the examination to proceed. In the latter case he must be sworn to answer truly all questions put to him, touching the inquiry prayed for in the petition,- and he may be examined fully and at' large • respecting property of the decedent. * * * The extent of the examination shall be in the discretion of the surrogate. If the witness is examined concerning any personal' communication or transaction between himself and the decedent, all objection under section eight hundred and twenty-nine to Ms testimony as to the same in future litigation is waived. Either party may produce further evidence in like manner and with like effect as on a trial.” Section 2710 of the Code of Civil Procedure provides that: “ If the facts ~ admitted by the witness show that he is in the control of property to whose immediate possession the petitioner is entitled, the surrogate may decree that it be delivered to the petitioner. If the witness admits having the control of the property, but the facts as to the petitioner’s right are in- dispute, the proceeding shall end, unless the parties consent to its determination by the surrogate, in which case it shall be so determined.”

These sections of the Code of Civil Procedure were materially amended in .1903, the sections, as amended being as above set forth. Whatever .construction may have been placed On them prior to such amendments, there.-isrno doubt that since the amendments .surrogates have power to examine a person proceeded against notwithstanding the interposition of an answer alleging title' to the property -in question. It was doubtless the legislative purpose in making such, amendments to enlarge the power of surrogates in a proceeding of this. kind. Formerly a surrogate was bound by an answer such as was interposed herein. But u.nder the present statute he may proceed and examine the person cited as to the facts alleged in his answer.' He may inquire into the verity of the . answer and is not boiind thereby. It is' the facts disclosed by the evidence and not the allegation of the answer which determines the proceeding. Of course, the surrogate can make no order adverse.to the person cited affecting the property in question, uhless it conclusively appears as matter of law from the evidence produced that his. claim of title is not well founded. But the purpose of the statute is to enable the surrogate to say whether the claim of title alleged in the. answefrests on a sound foundation oris a mere subterfuge-on the part of the claimant to deprive the executor or administrator of the property. or of information concerting the same. The case of Matter of McGuire (106 App. Div. 131) is not pertinent to this case. There the order appealed from directed the delivery of property without any examination, notwithstanding ati answer showing the right of the appellant to hold the property. '

It is said that this construction of the statute vests .in surrogates much inquisitorial power, and that the statute may thereby be made oppressive., This argument assumes that surrogates will not wisely exercise the discretion vested in them. That much discretionary power is given them is apparent.. When an answer is submitted “ the surrogate may then dismiss the proceeding or direct the exaniiiiation to proceed.” ' “ The" extent of the examination shall be in the discretion of the surrogate.” It is a discretion which should be wisely exercised and carefully guarded against abuse. But there are cases and circumstances where such power may properly be exercised by surrogates, and the extent of the examination permitted in each case should depend on a sound exercise of discretion.

■ The orders should be affirmed, with ten dollars costs and disbursements.

All concurred.

Orders affirmed, with ten dollars costs and disbursements. _ 
      
       Code Civ. Proc. chap. 18, tit. 4, art. 1.— [Rep.
     