In re the Probate of the Will of Gee , 33 N.Y.S. 425 ( 1895 )

Arnol», S.

This is an' application on the part of proponent for an order directing the examination of a witness residing in Greene county, in this State, to be taken before a referee in such county. I entertain no doubt of the power of the surrogate to make such order. Section 2539 of the Code prescribes the practice where a witness who is aged, sick or infirm cannot attend before the surrogate in whose county the proceeding is pending. Section 254© provides for cases where the disabled witness is in another county, and this, not being an application for the “ examination of a subscribing witness to a will,” comes within the category of “ other cases ” in which, a referee may be appointed. The decision in Re McCoskry, 10 Civ. Proc. R. 178, is not only not in conflict with this view of the subject, but entirely in harmony with it.

The affidavit presented is not very explicit as to- materiality of the evidence expected to be elicited from the witness, but, having supplemented it by an examination of the testimony of the subscribing witnesses, who fail to prove the execution of the will, there is enough to satisfy me that the testimony now sought may be material.

The provision with respect to the transmission of the will to the referee for use on the examination should not ordinarily be granted, but as tbe conflicting interests in this estate seem to be fairly represented, assuming the executor to be, so far as 1he papers and proceedings indicate, entirely disinterested, and all tbe attorneys, as well as the special guardian, not only consent to but urge tbe granting of tbe application, that provision may remain with a slight amendment.

Order as amended signed.