In re Woodward's Will

A contestant of the will and a beneficiary thereunder make separate applications for orders requiring the temporary administrator, a trust company, to give petitioners an inspection of a prior will of the decedent, in its possession. Although, under section 2472 of the Code of Civil Procedure, this court is given jurisdiction to direct and control the conduct of executors and administrators, jet this power is expressly limited by the pointed direction that “this jurisdiction must be exercised in the cases and in the manner prescribed by statute.” The powers conferred by subdivision 5 of section 2481 are similarly limited. Grave doubt has, therefore, been expressed whether an order of the kind here prayed for can be made by reason of any inherent jurisdiction of this court. Dale v. Stokes, 5 Redf. Sur. 586, affirmed in 28 Hun, 564 . This doubt becomes intensified when it is remembered that under section 2538 the provisions relating to the discovery of books and papers (sections 803-809) are expressly made applicable to surrogates’ courts, thus making the inference a strong one that all questions relating to applications such as are here made must be entirely tested and determined by those provisions. The petitioners, indeed, seem to regard their applications as discovery proceedings, and so I believe they should be considered. This being so, the many stringent rules that have been laid down in ■reference to such proceedings become directly applicable. It appears - that many of the material allegations are made on information and belief, without showing the sources of information, or the grounds of belief, and without corroborating these allegations with affidavits of ¡informants. Nor is it shown that the paper of which inspection is sought will actually be of advantage to the petitioners. It is apparent that these motions are made simply to ascertain whether or not this prior will can aid petitioners. There are other vital objections to the applications, but I have indicated a sufficient number to make it apparent that the petitions are fatally defective. Manufacturing Co. v. Gorham, 83 Hun, 342 , 31 N. Y. Supp. 965 ; New England Iron Co. v. New York Loan & Improvement Co., 55 How. Prac. 351. The applications must be dismissed.