In re the Probate of the Will of Danielson

John D. Bennett, S.

Motion in this probate proceeding for an examination before trial without the State on written interrogatories. The movant has appeared specially in this proceeding to challenge the jurisdiction of the court over the subject matter, on the alleged ground that the decedent was not a resident of this county at the time of her death. He cites the recent case of Matter of Sakel (9 A D 2d 763, affg. 19 Misc 2d 110) and other cases as authority for the proposition that an examination may be had in this court on a preliminary issue which, in the Sahel case, was one of status.

The proponent cites this court’s case of Matter of Beck (11 Misc 2d 31) which denied a motion for an examination as to a preliminary issue of jurisdiction, the precise question in point here. The distinction between the two cases is clear. In the Bech ease no objections to probate had been filed prior to the motion for an examination, and the holding was based on the fact that, until issue was joined by the filing of objections, there was no “ action ” pending which could be the subject of an examination before trial under section 288 of the Civil Practice Act.

In the case of a preliminary issue of status, the objections will already have been filed prior to the reply or motion challenging status, and the subsequent motion seeking an examination on the issue of status. In the Sahel case, as the lower court pointed out, the issue of status is a very substantial and integral part of the proceeding, and upon it depends the very existence of the rights sought to he enforced. As against this very material issue, the assertion of lack of residency of the decedent in this county so as to defeat jurisdiction is merely a minor question of whether this court or another will be the proper forum.

As the moving attorney stated on argument before this court on September 27,1961: “ It almost appeared to me there would be no reason for me to object since, thank goodness, whichever court it would be brought in I could be assured of the same treatment.” Such a situation does not present matters which are “material and necessary in the prosecution or defense of the action” warranting a pretrial examination. The preliminary issue of residency should be disposed of as expeditiously as possible without consequent delay in the probate of the propounded instrument. The matter will appear on the calendar for a hearing on October 2, 1961, at 10:00 a.m. Motion denied.