
    SURROGATE'S COURT.
    In the Estate of James G. Henry, deceased.
    
      Practice—Power of the surrogate to strike out allegations contained in a petition for the revocation of probate of a wiU as irrelevant, redundant and scandalous— Code of Civil Procedure, section 3533.
    A surrogate has power, on motion, to strike out allegations contained in a petition for the revocation of probate of a will, as irrelevant and redundant.
    Where the averments, which the moving party seeks to eliminate from the petition concern circumstances and occurrences, that must rather be regarded as matters of evidence bearing upon the issues to be tried than as necessary allegations making or attending such issues, they will be stricken out.
    
      New York county,
    February, 1885.
    Motion to strike out allegations contained in a petition for the revocation of probate of a will as irrelevant, redundant and scandalous.
    
      Charles C. Cronin, for motion.
    
      Francis N. Bangs, opposed.
   Hollins, J.

— Section 2533 of the Code of Civil Procedure declares that “ the surrogate may at any time require a party to file a written petition or answer, containing a plain and concise statement of the facts constituting his claim, objection or defense, and a demand of the decree, order or other relief to which he supposes himself to be entitled.”

The fourth rule of this court establishes the procedure for initiating the contest over the probate of a will, and requires that the contestant shall file a verified answer containing a concise statement of the grounds of his objections to probate, and of any facts that he may allege tending to show a lack of jurisdiction in the surrogate’s court. I see no reason why a petition for revoking probate should in this respect differ essentially from an answer to a petition granting probate. There are obviously many cases in which the surrogate, in the just exercise of the discretionary authority conferred upon him by section 2533, would not only permit, but would feel bound to require a petitioner or objector to make a full and detailed statement of the facts and circumstances upon which his claim or defense might depend. But, in general, a probate proceeding is of such a character that its issues may be clearly and distinctly presented, without resort to any such particularity of detail as appears in the petition for revocation which is here attacked.

The averments that the moving party seeks to eliminate from the petition concern circumstances and occurrences that must rather be regarded as matters of evidence bearing upon the issues to be tried than as necessary allegations making or attending such issues.

The whole case is presented in sufficient detail by such portions of the petition as have not been objected to.

The remaining portions must, therefore, be stricken out, but with the exceptions following:

The clause beginning with the words “ that in the summer of 1880,” and ending with the word “ Simmons,” may remain, and so, too, may the clause commencing with the words “ that your petitioner,” and ending with the words and figures “ the 28th day of September, 1883.”

Let an order be entered accordingly.  