In re the Estate of Murdoch

John C. Boylan, S.

This is a motion to preclude objectant, Ola H. Cowherd, in an administration proceeding, from giving evidence upon a hearing of her objections, as to matters in which she allegedly failed to furnish a bill of particulars.

The court has learned that a copy of the affidavit of the attorney for the objectant in opposition of this motion, was not served upon the attorney for the moving party, as required under the rules. However, since the court is deciding this motion in favor of the moving party, it will disregard the noncompliance by the objectant’s attorney.

In item four of the demand, information is sought as to “ the acts, course of conduct, and all other facts or factors which the objectant claims indicate or show ‘ improvidence ’ on the part of the petitioner.”

“ Improvidence ” has been defined in Funk & Wagnall’s New Standard Dictionary as “ lack of foresight or thrift ”, Legally, a person is not improvident, simply because he may have been unsuccessful in the management of his private estate. Bather, there must exist such a condition of irresponsibility which so pervades the moral fibre of the individual, so as to render bim generally, and under all ordinary circumstances, unfit to act in a fiduciary capacity (Matter of Flood, 236 N. Y. 408, 410, 411). While paragraphs three and four of the bill may have application to the proponent’s mental capacity and his alleged alcoholism, they have no application to his alleged ‘ ‘ improvidence ’ ’ as defined, supra.

Paragraphs three and four of the bill likewise do not answer item six of the demand, since these paragraphs have no direct bearing upon the degree of proponent’s want of understanding. The objectant has made no attempt in the bill as furnished to give any information as to item nine of the demand and it is therefore completely insufficient as to that particular matter.

Thus, the court is of the opinion that as to items four, six and nine of the demand, the objectant was not responsive in her bill.

Therefore, the motion to preclude is granted as to these, unless a new bill of particulars is served on the attorney for the proponent within 10 days after service of copy of order herein, with notice of entry. Settle order on notice.