
    In the Matter of the Probate of the Will of Bertha Eschen, Deceased.
    Surrogate’s Court, Westchester County,
    February 13, 1959.
    
      
      Birnbaum & Birnbaum (McGovern, Vincent & Connelly of counsel), for petitioner.
    
      Edward B. Willing for objectant.
    
      Ralph J. Marasco, as special guardian.
   Hugh S. Coyle,

County Judge and Acting Surrogate. An examination of proponent as an adverse party before trial will be permitted as to the execution of the propounded instrument (Matter of Goren, 203 Misc. 609; Matter of Veeder, 7 Misc 2d 662); as to the testamentary capacity of decedent (Matter of Korn, 265 App. Div. 987; Matter of Tanner, 185 Misc. 994); as to the fraud and undue influence allegedly practiced upon the testator (Matter of Frank, 165 Misc. 411; Matter of Kaplan, 193 Misc. 129; Matter of Kreutzburg, 185 Misc. 995); and as to the mental and physical condition of testatrix at, prior and subsequent to the date of the execution of the propounded instrument. (Matter of Goldman, 6 Misc 2d 663.)

The contestant also seeks to examine as a witness on the ground of special circumstances the wife of proponent. It has been held proper to allow an examination before trial of a witness likely to be hostile where it is shown that the witness was in a position to know the relevant facts. (Crellin v. Van Duzer, 267 App. Div. 744; Angell v. Booth, 169 Misc. 735; Matter of Egger, 188 Misc. 542; Matter of McAvoy, 69 N. Y. S. 2d 136.)

The examination will be limited to a period commencing three years prior to the execution of the will and ending with the death of testatrix which occurred less than two years after its execution. (Matter of Frank, 165 Misc. 411, supra.) So much of the relief sought as requests an examination for a period commencing more than three years prior to the execution of the will is denied without prejudice to a renewal of said application upon a proper showing as to the materiality and necessity of such an examination.

The persons to be examined will be required to produce all books, records, correspondence, prior testamentary instruments and memoranda in their possession or under their control bearing upon the subject of such examination. (Matter of Goren, 203 Misc. 609, supra; Matter of Goldman, 6 Misc 2d 663, supra.)

Settle order on notice, which in the absence of agreement between counsel shall set forth the time and place of such examination. The order should also be settled on notice to the special guardian.  