In re Foos — 2 Dem. Sur. 600

Majority

p. 600

Westchester County.—Surrogate.

Hon. OWEN T. COFFIN,

March, 1884.

Matter of Foos. In the matter of the will of George Foos, deceased.

Headnote

One claiming to be named as executor in an alleged will of decedent contained in a receptacle of a safe deposit company, to which access could be had only by the combined agency of an officer of the company and of decedent’s clerk, asked for an order directing the company, which had refused, to surrender the document to applicant’s counsel, with a view to its production in court.—

Held, that the court had no power to make or enforce such an order; that the proper remedy was a subpoena, duces tecum, to the custodians, to which the court could compel obedience.

Ah application was made to this court by George Patterson, showing that George Foos, late a resident of the village of Mount Vernon, Westchester county, died leaving a last will and testament, which was placed by a clerk of his in a receptacle which he controlled in the vault of a safe deposit company in the city of New York, and which will that company refused to surrender without an order from the Surrogate of

p. 601

Westchester county, directing it so to do, and praying this court to make such order.

Davies, Whitehead & Suydam, for petitioner.

As I understand it, the company alone has no access to the alleged will. It canhe obtained only by the co-operation of the superintendent of the vaults, who has the key to that containing the receptacle where the will is placed, and the clerk of the deceased who has the key to the latter.

I am asked to make the order sought, directing the company to deliver the will to Mr. Whitehead, one of petitioner’s counsel, to produce to this court. I know of no statute authorizing me to make such order, and, therefore, I should be powerless to enforce obedience to it, if made. Courts of limited jurisdiction, like this, cannot be too cautious about assuming powers they do not possess.

The applicant, claiming to be the executor, is not, however, without remedy. On filing a proper petition for probate of the will, a subpoena duces tecum, will be issued, directed to the proper persons, requiring them to produce the will in tins court, on the return day of the citation issued in such cases. Obedience to the requirements of the subpoena maybe enforced, if necessary.

Application denied.