In re the Estate of Griffith — 54 Misc. 2d 795

Majority

p. 795

In the Matter of the Estate of Helen D. Griffith, Deceased.

Surrogate’s Court, Erie County,

October 10, 1967.

William B. Mahoney for proponent. Lipsitz, Green, Fahringer, Roll, Schullerz & James (Herald P. Fahringer, Jr., of counsel), for contestants.

This is a contested probate proceeding in which contestants seek to examine Howard H. Starrett as executor of the above estate, and Dr. John F. McGowan, subscribing witness to the last will of the above decedent. In connection therewith a. notice of motion was made for a protective order denying the taking of such depositions or, in the. alternative, limiting same.

Heretofore Dr. John F. McGowan was examined as a subscribing witness under section 141 of the former Surrogate’s Court Act. Such examination was conducted before this court and this examination was at great length and related to medical matters and other matters apart from and in addition to testimony relating to the execution of the will.

p. 796

While it is true that courts have been liberal in disclosure proceedings, nevertheless the Legislature, in the Laws of 1966, made effective section 1404 of the SOPA, part of subdivision 4 thereof stating: “ No person who has been examined as a witness under this section shall be examined in the same proceeding-under any other provision of the law except by direction of the court While it is true that this section was passed following these proceedings this court has always had this philosophy of denying unlimited opportunity for repetitious examinations of attesting witnesses.

Dr. McGowan is not an adverse party to this proceeding and inasmuch as no special circumstances have been shown to justify a further examination, especially in light of the testimony heretofore taken, the court will deny any further examination before trial of Dr. McGowan.

With respect to the examination of Howard H. Starrett as executor, the court will permit such examination but limit same to facts and circumstances which followed his appointment as such executor.