In re the Estate of Smith

—This is an application by the proponent in this proceeding based upon the affidavit of one of his attorneys, Mr. Tracy, for an order that the books and other writings produced by the proponent and the witnesses on the trial be forthwith returned by the officers of this court in whose custody they are to the persons and parties who produced the same. The statute relating to the subject matter of this motion satisfied me that this is a proper case for granting some relief to the proponent, but not to the extent demanded in the order to show cause. Section 2500 of the Code of Civil Procedure is very plain in its terms, and the surrogate is required thereby to carefully file and preserve in his office every deposition, affidavit, petition, report, account, voucher or other paper relating to any proceeding in his court, and must deliver to his successor all papers and books kept by him. In this proceeding an appeal is pending, and until that appeal has been determined, the papers asked for in the application which were a part of the proceeding on the contest must be carefully preserved by the surrogate. There is some uncertainty as to whether the papers sought and which were used as exhibits on the contest were copied fully by the stenograper into his minutes, if they were, then I am of opinion that the proponent, the executor named in this will, may receive all exhibits introduced by him, whether furnished by him personally or by others at his request for his use, the same to be delivered upon his depositing with the court his official receipt therefor. Unless such exhibits have been, or may be copied by the stenographer into his minutes, they cannot be removed from the files of the court.