
    In the Matter of the Estate of Arnold Rothstein, Deceased.
    
    Surrogate’s Court, New York County,
    January 22, 1929.
    
      I. Gainsburg, for the contestants Abraham E. Rothstein and others.
    
      Hartman, Sheridan & Tekusky, for Maurice Cantor and William Wellmann.
    
      
      Abraham H. Brown, for Samuel Brown.
    
      Abraham Smolens, for the contestant Caroline Rothstein.
    
      Nathan Burkan, for the temporary administrators.
    
      
       See, also, Matter of Rothstein, 133 Mise. 547.
    
   O’Brien, S.

The application for an order directing the proponents of the will to submit to an examination before trial is granted. The contentions (a) that some of the proponents may not be adverse parties within the meaning of section 288 of the Civil Practice Act, because they are not named in the objections as parties who exercised undue influence, and (b) that there is no statutory authority for the examination sought to be had, are without merit. The proponents of a will are always parties to the probate proceeding and upon the filing of objections become adverse parties. (Matter of Carter, No. 1, 193 App. Div. 355; Matter of Friedman, 133 Mise. 560.) These cases also show that statutory authority exists for the examination herein sought. Matter of Briggs (180 App. Div. 843), cited by the attorneys for one of the proponents, is not controlling in such a proceeding as the present one. In that case the examination of the executrix was sought to be had under section 2611 of the Code of Civil Procedure (now Surrogate’s Court Act, § 141). That section provides for the examination of subscribing witnesses to the will, and it is significant that the examination of the executrix was therein sought before the filing of objections. The further contention that the examination should be limited to acts at or prior to the execution of the will, and to questions of fraud and undue influence, is correct, and the order to be entered herein should so provide. Submit order on notice accordingly.  