In re the Estate of Frobisher , 199 N.Y.S.2d 31 ( 1960 )

Maximilian Moss, S.

This is an application in the nature of a motion made in behalf of residuary legatees for leave to intervene in a discovery proceeding commenced by an executor under section 205 of the Surrogate’s Court Act. The executor examined respondents in the discovery proceeding. The attorney for residuary legatees, who had voluntarily filed a notice of appearance in this proceeding, was present throughout the examination. At its conclusion he sought to examine respondents on behalf of his clients, claiming he has a right to do so inasmuch as he represents the real parties in interest. Respondents take the position that, having been examined by the party designated by the statute, they cannot be subjected to the harassment of repeated examinations by any or all persons actually or conceivably interested in the result.

Section 205 of the Surrogate’s Court Act authorizes an “ executor, administrator, temporary administrator, testamentary trustee or guardian ” to present a petition asking that a respondent “ be ordered to attend the inquiry and be examined ” as to property allegedly withheld. The statute specifies the representatives of an estate who may maintain such a proceeding, and provides for the examination of respondents by the fiduciary charged with the duty of enforcing the rights of all persons beneficially interested in the fund. Except under unusual circumstances not present here (cf. Matter of Shulsky, 21 Misc 2d 734, decided to the contrary simultaneously herewith) the court will not permit legatees, creditors, beneficiaries or other persons interested in an estate to intervene in a discovery proceeding or be afforded the opportunity to examine respondents in addition to the fiduciary who represents all of them. To permit others to examine, where no special and unusual circumstances are shown, would place a burden upon respondents beyond that placed on them by the Legislature and would unduly complicate the simple, expeditious and summary procedure established for the benefit of the estate representative. The application is denied. Settle order on notice.