In re Henry ( 1886 )

Rollins, S.

The unsuccessful petitioner for the revocation of the probate of this testator’s will asks by his present application that he be allowed out of the assets of the estate the sum of $203.42 “as and for his expenses for stenographer’s minutes.”

Subdivision 3 of section 2558 of the Code of Civil Procedure, provides that in probate controversies “the surrogate may order a copy of the stenographer’s' minutes to be furnished to the contestant’s counsel and charge the expense thereof to the estate if he shall be satisfied that the contest is made in good faith.” _

_ In view of this provision, and of the opinion expressed in my memorandum of October 4, 1886, I should feel bound to allow the petitioner out of the assets of the estate for any reasonable and proper expenses incurred by him in obtaining a copy of such “ minutes” as are referred to in sections 2541, 2542 and 2543 of the Code; and of such only. Those sections relate exclusively to minutes of testimony taken in the course of the actual trial of a proceeding in the surrogate’s court.

Now, it is not disputed that $174.12 of the $202.42 disbursed by the moving party herein was expended by him for a stenographer’s report of the examination de bene esse of one Catharine Moore. That deposition was not read in evidence at the trial, and was not returned in the manner provided for by section 880 of the Code. Nor was the way paved for its introduction in evidence by proof that the deponent had died, or that she was absent from the state or was unable to attend the trial by reason of her confinement in prison or jail or because of insanity, sickness or other infirmity.

For these reasons it is plain that to the extent of $174.12 the application of the moving party must be denied. I have some doubt whether he is not precluded by the stipulation of February 24, 1886, from claiming reimbursement for the sum of $28.30 paid the stenographer for a copy of the testimony actually taken at the trial; but I have concluded to allow him that amount of the assets of the estate.