
    In the Matter of the Estate of Patrick McMahon, Deceased.
    Surrogate’s Court, New York County,
    November 11, 1931.
    
      
      James O. Trybom, for the contestant.
    
      John F. Burke, for the proponent.
   O’Brien, S.

This is an application by the contestant for an order for the examination of the two subscribing witnesses to the will. The contestant has already filed objections to the probate of said will. The proponent contends that because said objections have been filed the examination sought by the contestant is not one under section 141 of the Surrogate’s Court Act and argues that this examination before trial is, therefore, governed by the provisions of section 288 of the Civil Practice Act which permits the examination before trial only of an adverse party. The last sentence of section 141 of the Surrogate’s Court Act reads in part as follows: “Any party to the proceeding, before filing objections to the probate of said will, may request the oral examination of the subscribing witnesses thereto and may examine such witnesses * * The proponent contends that this language limits the right to said examination to a situation where no objections have been filed. The italicized words “ before filing objections to the probate of said will ” were inserted by an amendment to the original section 141 (Laws of 1925, chap. 575). Section 141 of the Surrogate’s Court Act prior to such amendment (Laws of 1922, chap. 653) read as follows: “ Any party to the proceeding may request the oral examination of the subscribing witnesses to the will and may examine such witnesses. * * * ” It will, therefore, be readily seen that the amendment granting to a party to the proceeding a right to the examination of the subscribing witnesses “ before fifing objections to the probate of said will ” was intended to extend the statute so as to permit such examination even before objections were filed and was not designed to prevent such examination after objections have been filed. The amendment was carelessly drawn and an examination of section 141 of the Surrogate’s Court Act prior to this amendment and as it is now framed will clearly show that a contestant has a right to the examination of the subscribing witnesses at any time, either before or after the fifing of objections. This has always been the practice of this court and experience has shown that it is a desirable and advantageous practice. It often results in the withdrawal of objections where the same have been filed or convinces the contestant that the fifing of objections would simply cause needless litigation. The motion is, therefore, granted.  