In re the Accounting of Shapiro

In an executor’s accounting proceeding an application has been made to vacate objectant’s notice for the examination before trial of the coexecutrix who is the widow of decedent and a beneficiary under the will. The notice requests an examination of such coexecutrix under section 263 of the Surrogate’s Court Act and as an adverse party before trial pursuant to sections 288 and 290 of the Civil Practice Act.

The application for the examination of such co executrix is opposed on the ground that the person to be examined is a cardiac invalid. The affidavit of her physician alleges that even an informal hearing, as distinguished from a formal court appearance, would probably produce very serious results.

One of the executors has already been examined as to the issues raised by the objections although the transcript of such examination has not been filed in this office. The objectant has failed to establish that an examination of the coexecutrix as an adverse party before trial is material and necessary.

In lieu of her examination under section 263 of the Surrogate’s Court Act the executrix is directed to execute an affidavit as to her acts and conduct in the administration of the estate *943insofar as they relate to the objections filed to the account, and to cause such affidavit to be served and filed. The executrix is. directed to submit with such affidavit any appraisals, memoranda or other records as executrix relating to the matters required to be included in such affidavit. Upon the filing of such affidavit and the submission of such records, the attorney for objectant may apply for such other or further examination of the executrix as he deems advisable.

The motion to vacate the notice of examination is granted, except to the extent hereinabove indicated. The order to be made herein shall fix the time within which such affidavit and records are to be submitted and filed.

Settle order.