
    Margaret J. Plant, Individually and as Trustee, etc., of Henry Bradley Plant, Deceased, Respondent, v. Lynde Harrison and Others, Individually and as Trustees, etc., of Henry Bradley Plant, Deceased, Appellants, Impleaded with Henry Bradley Plant, an Infant.
    — Order affirmed, with ten dollars costs and disbursements.—Appeal from an order denying a motion of the defendants to vacate an order for the examination of the defendant Tilley before trial.—
   Ingraham, J.:

The substantial issue of fact in this case is as to the residence of Henry Bradley Plant, the testator iri the will sought to be probated, at the time of his death. It is alleged in the complaint that the said Plant was at the time or his death a resident of this State, and that allegation is denied by the answer of the adult defendants. This last codicil was executed on the 20th of June, 1899, at New Haven, Conn., and it appeared from the affidavit upon which the order was granted that the decedent left New York on the 16th of June, 1899, stating that he would go to Branford, in the State of Connecticut, where he had a summer residence, and would return to New York on Tuesday, June twentieth, and that he was accompanied by • the defendant Tilley; that he did return to New York on June twentieth, and died on Friday, June-twenty-third; that Tilley was a non-resident of the State of New York, and had been for many years the confidential employee and agent of the 'decedent, was one of the executors of and trustees under the last will and testament of the decedent, and verified the answer of the defendants; an d that the plaintiff desires'to prove where the decedent went and what transpired from. the time he left New York on the sixteenth of June until his return on the twentieth of June; that such facts are material and necessary to be proved upon the trial; that the application is made in good faith to preserve the testimony of the said Tilley, and that the plaintiff intends to use such testimony upon • the trial of the action. There is nothing in the affidavits submitted by the defendants upon this motion that would impeach the good faith of the plaintiff -in making this application. The case is thus brought within section 872 of the Code of Civil Procedure. That the deceased had been for many years prior to his death a resident of the State of New York is conceded, and the question of his residence and whether in fact there was an effective change of residence within a few days before his death is the material question. of fact to be disposed of in this action. It is evidently quite essential for the plaintiff to prove what happened-during this visit to Connecticut, and the testimony of this defendant, whom it is now proposed to • examine, as to the acts or declarations of the defendant during his visit to Connecticut which would tend to establish the fact of his residence, would prevent the necessity of taking the depositions of other witnesses in the State of Connecticut. While it is quité trae that an examination before trial is not

allowed for the purpose of enabling a party to prepare for trial, the fact that such deposition is to be used for that purpose would not defeat the application where it appeared that the object - of the examination was in good faith to procure evidence to be used upon the trial; and while the courts have been careful to refuse an examination where, from all the circumstances,-it was apparent that the object of the examination was not to obtain testimony, but to ascertain in advanee what testimony the party whose examination is sought would give upon the trial, still where it is evident that the evidence will be material; that there is no reason to doubt the good faith of the party making the application, and that it was intended to use the testimony taken upon the trial, the right given by the Code should not be refused. As to what happened during this visit to Connecticut, the plaintiff, who was in New York, can have no knowledge, and it is essential that she should establish what happened there at the time of the execution of this codicil. No good reason is • shown why she should not have an. opportunity of proving those facte by the examination of this defendant, and I think that, under the circumstances, the order for his examination was justified. The order appealed from should be affirmed, with ten dollars costs and disbursements. Patterson, McLaughlin and Hatch, JJ., concurred,  