In re the Estate of Lupton , 210 N.Y.S.2d 897 ( 1960 )

Pierson R. Hildreth, S.

This is a proceeding under section 137 of the Surrogate’s Court Act wherein petitioner seeks the production and filing of certain wills made by decedent prior to the date of a will which has been admitted to probate.

It appears to be conceded that such prior wills are in existence in possession of decedent’s former attorneys; also, it appears that petitioner is a creditor or person interested entitled to bring the proceeding, and has instituted a proceeding in this court to determine her rights.

Petitioner has complied with the prerequisite statutory requirement of section 137. In the opinion of the court it has been sufficiently shown that the content of the prior testamentary instruments may affect petitioner’s right as a claimant in the proceeding in this court, or the distribution of the estate under the probated will, or the assets or proceeds thereof. In such situation the Surrogate is given discretion under section 137 of the Surrogate’s Court Act to require production and filing of the wills.

Such is an independent proceeding (Matter of Hardy, 216 N. Y. 132). It may be instituted even though a will has been probated. (Matter of Work, 151 App. Div. 707.) This proceeding has no relation to any other proceeding and determines no rights, but only directs the production and filing of the wills. What, if any, effect the same may have or what, if any, use may be made of them by persons concerned is a matter for consideration in whatever other proceeding may be brought wherein the documents may be relevant. (Matter of Yung, 216 App. Div. 595; Matter of Rhode, 170 Misc. 596; Matter of Reynolds, 202 Misc. 1036.) Where there is a reasonable basis for belief that the estate or rights of persons interested might be affected by the instrument sought, it has been said it is the policy of law to require filing of such testamentary instrument. (Matter of Kennedy, 164 Misc. 796; see, also, Matter of Rourke, 133 N. Y. S. 2d 735.)

Petitioner’s application is granted. Submit order directing-production and filing of the wills sought on notice.