
    In the Matter of the Estate of Lee A. Wolfle, Deceased.
    Surrogate’s Court, Erie County,
    May 27, 1965.
    
      Phillips, Mahoney, Lytle, Yorkey & Letchworth (William A. Bain, Jr., of counsel), for proponent. George J. Saab and John J. Olszewski for contestant.
   William J. Regan, S.

The contestant herein has asked for a preliminary examination of the subscribing witnesses under section 141 of the Surrogate’s Court Act. The proponent, by its attorney in open court, advised the ‘Surrogate that one of the witnesses sought to be examined is recalcitrant and has refused his several requests to appear.

The proponent’s position is that if, as it appears here, it becomes necessary to subpoena such witness and to pay witness’ fees, etc., it is the duty of the contestant seeking the examination to bear those burdens. The contestant argues otherwise, claiming that section 141 of the Surrogate’s Court Act requires the proponent in all instances to present the witness for such examination. “ Any or all of the subscribing witnesses may be examined by any party to the proceeding. Where one of the witnesses is hostile, recalcitrant or not within the control of the proponent, his presence may be enforced by an order procured by the party seeking to examine. (Matter of Elias, 128 Misc. 122.) ” (Matter of Felenstein, 144 Misc. 345, 347.) In that case, where one of the subscribing witnesses resided in a distant county, the statutory subpoena fees were ordered paid by the contestant.

It is also true that the Surrogate, at the request of any party, may order the examination of a subscribing witness within the provisions of section 141 by a direct order against him, with the consent of the proponent. The proponent, of course, would be entitled to notice of this application and to participate in it.

It appears therefore in this case, where the witness is hostile and recalcitrant, that the proponent should not be burdened with the necessity of subpoenaing said witness, or paying witness fees, but that the one seeking the examination shall have to bear those burdens.  