Majority
p. 916In the Matter of the Probate of the Will of Charlotte M. Hutchings, Deceased. (Supreme Court, General Term, First Department, Filed October 16, 1891.)
Headnote
Depositions—Sueboqate’s couet.It is no objection to an order of a surrogate for the examination of a witness by his assistant that it is claimed that the witness is of limited mental capacity or not competent. Such questions may he determined by the surrogate when the deposition is offered to he read on the proceeding before him.
Appeal from order of the surrogate granting order for the examination of one Jacob M. Hutchings.
C. I. McBurney, for app’lt; A. A. Redfield, for resp’t.
We see no reason for interfering with the order ■of the surrogate for any of the reasons urged by the counsel for the appellant. ¡
If there is any question in regard to the mental capacity of the witness whose testimony is to be taken, that question can be de
p. 917
termined by the surrogate when such evidence is offered to be read before him. in the proceeding in which it is taken ; and there is nothing in the order which, in any way, allows the surrogate’s assistant to determine the question of the competency of the proposed witness. He is only authorized to take the testimony of the witness; whether such testimony is of any value is a question which must be determined by the facts appearing before the surrogate upon the trial or hearing of the proceeding.
The order should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Daniels and Ingraham, JJ., concur.