
    John Nelson, App'lt, v. Laura Nelson et al., Resp'ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    Ysnub—Pabtition .
    Where an action of partition which involves the question of the validity of a will is brought in a county in which but one of the parcels in question is situated, it is proper to change the place of trial to the county in which the testator resided at the time of his death, and in which the witnesses for the defense, who largely outnumber those of the plaintiff, reside.
    Appeal from order changing the place of trial for the convenience of witnesses.
    
      G. A. G. Barrett, for app’lt;
    
      Frank B. Lown, for resp’ts.
   O’Brien, J.

This action was brought by plaintiff, as an heir at law and next of kin of Homer A. Nelson, for a partition or sale of the real estate of which deceased died seized, upon the ground of the intestacy of the said deceased. The defendant moved to change the place of trial from New York to Dutchess county, on the ground of the convenience of witnesses. By the affidavits it was made to appear that the testator at the time of his death resided in Dutchess county, owned several parcels of land, only one of which was situate in the city of New York, and that all these, by the terms of the will, which, after a contest, was probated, were bequeathed and devised to his wife and sister. In this action the question at issue is the validity of the testator’s will, which, it is claimed, is void by reason or the testator’s mental incapacity and a failure to execute the same in conformity to the statute.

It would appear that two contests over this will have already been had before the surrogate of Dutchess county, one initiated by Charles Nelson, and subsequently another by the plaintiff, both brothers of the testator, and that in both these proceedings the contestants were unsuccessful; the former having been finally disposed of by the court of appeals in defendants’ favor, and the latter, initiated by this plaintiff, being now pending upon appeal to the general term of the supreme court from the surrogate’s refusal to revoke probate of the will. It was also shown that the testator, at the time of his death, and at the time the will was executed, resided in Dutchess county, and that the witnesses required to establish the defense, who outnumbered those the plaintiff intended to produce upon the trial, were also residents of that county. Upon this ground, of the convenience of witnesses, we think that the learned judge correctly disposed of the motion.

It is insisted, however, that, in addition to this ground, the place of trial should not have been changed, for the reason that, as plaintiff claims, there exists a prejudice and a feeling in the community against his position as plaintiff in this action which would render it impossible to have a fair and impartial trial, and, therefore, under the discretionary power conferred by the Code, § 987, to change the place of trial in order to secure an impartial trial, the convenience of witnesses, or the ends of justice, that the court may send the cause to another county, even though, under the provisions of the statute, it would not be the proper county. We think, however, that the suggestion that an impartial trial cannot be had in Dutchess county is, upon the showing here made, without merit. In this case, as was said in the case of Lane v. Town of Hancock, 29 St. Rep., 635, “ unless there has been a plain and evident misuse of such discretion, the decision of the special term must stand.” Upon an examination of the facts here presented, we do not think that there was any such misuse, but that the motion to change the place of trial was properly granted.

The order appealed from should, therefore, be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.  