In re the Probate of the Will of O'Brien

Appeal from an order of the Surrogate’s Court of St. Lawrence County, directing that appellants furnish a verified bill of particulars covering their objections to the probate of an instrument propounded as the last will and testament of Dennis O’Brien, deceased, dated April 15, 1948. Appellants’ “Sixth” objection is that the instrument offered for probate was revoked by another and valid will which the testator executed subsequently. The order appealed from among other things directs appellants to furnish, as respects the latter will which they allege, its “ date, place, names of witnesses, and terms ”, and also whether it is presently in existence or was in existence at the time of the testator’s death. We construe the quoted words to refer to the time and place where such alleged will was executed and the names of its subscribing witnesses. The appeal questions the order only as respects the foregoing particulars. In that, the order transcends what was asked for in the demand since the latter asked only for the date and place of the execution of the alleged later will, its terms, and the witnesses thereto. In such a case respondents should not become entitled to more than what they have asked for. In other respects we consider the order a proper one. Moreover, the order’s reference to the “ existence ” of the alleged later will is indefinite. Whether such refers to the physical existence of the instrument alleged or to its legal existence of a valid will which revoked the instrument proponents have offered for probate, is not clear. The order is modified on the law and facts by striking therefrom that portion of its second ordering paragraph in reference to the “ existence ” of the alleged subsequent will of the testator, and, as modified, affirmed, without costs. Present — Foster, P. J., Heffeman, Brewster, Deyo and Coon, JJ.