
    In re GARTLAND’S WILL.
    (60 Misc. Rep. 33.)
    (Surrogate’s Court, New York County.
    May 6, 1908.)
    Trial—Experiments in Court.
    After a paper had been propounded as a last will, permission to apply a chemical test in open court to determine the quality and composition of ink, without preliminary preparations for safeguarding the present actual condition of the paper offered, will not be granted.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 76.]
    In the matter of the will of Sarah Gartland. On order, after admitting will to probate, to show cause why the case should not be opened.
    Motion denied.
    Charles Fox, for proponent.
    William H. Loughran, for contestant.
    Edward R. Finch, special guardian.
   BECKETT, S.

This will contest was tried, closed, and a memorandum in favor of probating the will filed May 6, 1908. Thereafter the contestant obtained an order to show cause, alleging newly disqovered evidence, why the case should not be opened, and, after argument, contestant’s motion was granted. The contestant simply introduced by way of newly discovered evidence the opinion of an expert in handwriting, and in that connection makes a motion during the trial, while the expert is upon the witness stand, for permission to have a chemical test applied in open court to certain writings upon the face of the propounded paper, to test the quality, chemical composition, etc., of the ink.

It is true that a surrogate of this county has heretofore permitted chemical tests to be applied to propounded papers. An order was obtained for such purpose before trial in Matter of the Will of Thomas J. Monroe (Sur.) 5 N. Y. Supp. 552. But an' examination of that order will show how carefully the test was limited, and no appeal was taken from that order. I have before me another decision of Surrogate Ransom (Matter of Wait [Sur.] 1 N. Y. Supp. 784) where it would appear that the expert applied a chemical test in court. The opinion fails to disclose that any opposition was made to the application of such test. In this matter the attorney for the proponent and the special guardian both oppose contestant’s motion. No photograph of the propounded paper has been taken, and I do not think the contestant can properly ask for this test, at least in the midst of the trial and without some preliminary preparation for safeguarding the present actual condition of the propounded paper. I am fully conscious of the skill and care that this expert (Mr. Carvalho) would exercise in making such a test. I know that he has frequently applied chemical tests to writings in open court. He was the expert in both of the cases referred to above, and he has, I believe, recently made a chemical test in open court in a case before one of the Vice Chancellors in the state of New Jersey. Nevertheless, I have a very strong feeling of doubt as to the propriety of subjecting a will to chemical tests. The very paper itself, unchanged, in its exact original form and character, is often of the highest importance to the parties in interest in litigation subsequent to the original probate. To take anything from or add anything or subject in any particular the propounded paper to a change at its first trial, the time of original probate, I regard as a dangerous practice. I will deny the motion.

In view of my denial of the motion to permit a chemical test during the trial, I will adhere to my decision to admit the propounded paper to probate, which decision was given in this matter on May 6, 1908 (112 N. Y. Supp. 718). Weber v. Third Ave. R. R. Co., 12 App. Div. 512, 42 N. Y. Supp. 789; Green v. Benham, 57 App. Div. 10, 68 N. Y. Supp. 248; Matter of Kearney, 69 App. Div. 481, 74 N. Y. Supp. 1045. Submit order vacating stay and decree and decision on notice.

Decreed accordingly.  