Lowe v. Taylor — 254 A.D. 755

Majority

p. 755

In the Matter of the Application of William Lowe and Olivia Olsen for an Order of Prohibition, Appellants, against Charles E. Taylor, as Surrogate of Orange County, and Eleanor Chalfant Cooper, Martha Chalfant Wheelwright, Henry Chalfant, Jr., Mark Horne, S. Sloan Colt, Frederic Foster de Rham, John Luft, Tuxedo Park Fire Department of Tuxedo, William C. Heywood, Williston Benedict, Madeline Carey Reed, Emily Foster Lawrence, Frederick Foster Carey, Clarence Dickinson, Mary Flanagan, Tuxedo Memorial Hospital, G. Robert Bartlett and J. Allen Ballman, as Special Guardians for Doria Wynn Frances St. Clair Sproul-Bolton and Hugh-Peter St. Clair Sproul-Bolton, Infants, etc., Central Hanover Bank & Trust Company and William C. Fay, Respondents.

Order denying the application of the petitioners for an order (formerly called order of prohibition) restraining the surrogate of Orange county from proceeding in alleged excess of jurisdiction, unanimously affirmed, with ten dollars costs and disbursements. In the proceeding to probate a will, it appears that the testimony of the attesting witnesses is disappointing to proponents, for they are not willing to state that the will was duly published in their presence by the testatrix. This presents no reason why the court should advise the surrogate as to rulings on the admissibility of evidence in the future course of the proceeding. If it eventually turns out that the proponents are aggrieved, their remedy will be by appeal. Neither on the law nor in the exercise of discretion should the order applied for be granted. Present — Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ.