In re the Application to Revoke Letters Testamentary Issued to Wagenheim ( 1938 )

Appeal from an order of the Surrogate’s Court of Montgomery county, denying an examination of an adverse party before trial. Jacob Wagenheim died January 15, 1925, leaving a will by which he made some relatively small bequests, and all his remaining property to his widow as trustee and in trust for her own support during life and for the ■support of daughters until their marriage respectively, with the right to the widow to invade the principal if necessary for those purposes. All the daughters married. He appointed his widow and petitioner’s husband, a son-in-law, executors. Petitioner in this proceeding seeks a decree revoking the letters testamentary issued to her mother, and removing her as trustee. By order to show cause granted herein on August 20, 1937, petitioner sought to examine her mother before trial, and for an inspection, including the right to make copies, of the books, papers, correspondence and securities of the estate. No accounting is asked. The surrogate granted the inspection, and denied the examination, on the ground the information sought was largely documentary and matters of record available to the petitioner. The amount of the estate in the hands of the trustee, the large number of securities and transactions involved, as shown by the petition and moving papers, and the alleged confusion of funds and ill-health of the trustee, indicate the propriety of an examination before trial. Accordingly the order is reversed, in so far as it denies an examination before trial, and such examination is granted. A referee to conduct the examination should be named. Decision in the above-entitled matter amended to read as follows: Order, in so far as it denies examination before trial, reversed on the law and facts with ten dollars costs and disbursements and motion granted, with ten dollars costs,' and Thomas J. Tighe, Jr., Esq., attorney and counselor at law of the city of Amsterdam, N. Y., is appointed referee to conduct the examination. The first hearing on such examination shall be held before said referee at his office, 43 East Main street, in the city of Amsterdam, N. Y., on the 4th day of April, 1938, at ten o’clock in the forenoon. Notice of the time and place of such examination shall be given to all parties who have appeared in the proceeding at least five days before the date of such examination. The respondent is directed to produce before the referee all books, papers, documents and records in her possession or under her control containing a record of the transactions relating to her trust, together with all the securities belonging to the trust estate. Hill, P. J., Rhodes, MeNamee, Bliss and Heffernan, JJ., concur. [164 Mise. 823.] _