
    In the Estate of Philip McGovern, Deceased.
    
      (Surrogate’s Court New York County,
    
      Filed May 4, 1887).
    
    1. Will—Probate of—Contest of—Examination of witnesses under Code Civ. Pro., § 2618—Transfer of proceedings to common pleas Code Civ. Pro., § 2547.
    A proceeding for the probate of an instrument purporting to be a will having been transferred into the court of common pleas, under Code Civil Procedure, section 2547, an application was made in the surrogate’s court by the counsel for the contestants for an order requiring the proponents to produce and examine at the time in the court of common pleas certain witnesses, whose testimony was claimed to be material within, the meaning of section 2618, which provides that any party who contests the probate of a will may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will, or of any other witness whose testimony the surrogate may be satisfied is material; in which case all such witnesses who are within the state and competent and able to testify must be so examined. Held, that as regards subscribing witnesses, no order was necessary for their production. That by the act of filing the notice prescribed in Code Civil Procedure, section 2618, a contestant in a probate controversy before the surrogate could prevent the establishment of a will until after the examination of all its subscribing witnesses, if within the state and competent to testify.
    2. Same—Examination of witnesses under Code Crv. Pro., § 2618—Or-der FOR UNNECESSARY.
    
      Held, that the examination of any person or persons, other than the subscribing witnesses, was prerequisite to probate in the surrogate’s court only when the surrogate might be satisfied as to the materiality of their testimony. That no order was necessary for their production; but that the burden of producing them must fall upon the proponents, because that duty not being imposed by the statute upon the contestants, the will cannot be admitted to probate until their production and examination.
    3. Same—Transfer of probate proceedings to the court of common pleas—Examination of witnesses.
    
      Held, that the proceeding having been transferred to the court of common pleas, the question as to the materiality of the testimony of the persons whose production as witnesses was sought, must be determined, if at all, by that court.
   Rolhns, S.

A proceeding for the probate of an instrument purporting to be this decedent’s will was lately transferred to the court of common pleas, in accordance with the provisions of section 2547 of the Code of Civil Procedure. Counsel for the contestants now make application in the court for an order requiring the proponents to produce and examine, at the trial in the court of common pleas, certain. witnesses, whose testimony is claimed to be material’* within the meaning of section 2618 of the Code.

That section provides that “any party who contests the-probate of a will may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will or of any other witness whose testimony the surrogate is satisfied may be material; in which case all such witnesses, who are within the state and competent and able to testify, must be so examined.” Here, it will be observed, is a specification of two classes of witnesses; the first class consisting-of subscribing witnesses to the will in controversy, and the second class consisting of persons, not subscribing witnesses, whose testimony may be deemed material by the surrogate.

Now it is plain that as regards subscribing witnesses, no order can ever be necessary for their production. By the very act of filing the notice prescribed in section 2618, a contestant in a probate controversy before the surrogate may effectually prevent the establishment of a will until all its subscribing witness (if within the state and competent to testify) shall have been examined.

The examination of any particular person or persons other than subscribing witnesses, is an essential prerequisite to probate in this court, only when the surrogate is satisfied that the testimony of such witnesses may be materiál. When he has declared himself so satisfied, the witnesses who can give such material testimony must be brought before him and examined, unless they are absent from the-state or incompetent or unable to testify. No order is necessary for the production of such witnesses. The practical burden of producing them must fall, as I held in Hoyt v. Jackson, (2 Dem., 450), upon parties proponent, “not because the statute so declares, for it does not, but because as it fails to impose the duty upon parties contestant, they can rest securely upon the fact that until such witnesses have been produced and examined the will cannot be admitted to probate.”

It follows that the application of the contestants in the case at bar must be denied.

If the probate proceeding were pending to-aay in this court, I could be asked, under section 2618 to determine this question and this only: whether the testimony of the persons whose production as witnesses is here sought may be material; and that question if it is now to be passed upon at all, must be passed upon in the court of common pleas.

As to the applicability or non-applicability of the provisions of section 2618 to the trial in that tribunal of probate controversies transferred -from this, I intimate no opinion.  