In re the Estate of Bergold

In this proceeding to set aside the decree of this court dated June 26, 1959, admitting to probate a will of the decedent dated March 19, 1957, petitioner herein, a son of the decedent, has served a notice to examine Gerald J. Barre, Esq., attorney for the respondent executor, as an adverse party and hostile witness.

Gerald J. Barre has moved this court for an order vacating said notice to examine and has also moved for an examination *376by respondent executor of the petitioner as an adverse party pursuant to section 288 of the Civil Practice Act, and for an examination of Cecile M. Bergold and Cecile F. Bergold Whelan, as subscribing witnesses to the alleged revocation of the will pursuant to section 141 of the Surrogate’s Court Act.

In addition to these motions, the special guardian has moved for an order permitting him to examine the petitioner pursuant to section 288 of the Civil Practice Act, and Cecile M. Bergold and Cecile F. Bergold Whelan pursuant to the provisions of section 141 of the Surrogate’s Court Act.

The motion to vacate the notice to examine Gerald J. Barre as a hostile witness pursuant to section 288 of the Civil Practice Act is denied. The petitioner has shown sufficient special circumstances to entitle him to examine Gerald J. Barre on all facts and circumstances relevant to the alleged fraud, and to require the production of documents in his possession relating thereto. The objection to matters of a confidential nature arising out of an attorney-client relationship may he asserted by the witness, Mr. Barre, at the examination prior to the answering of questions or the exhibition of said documents.

The motion and cross motion for the examination of the petitioner as an adverse party are granted, petitioner having consented thereto.

The examination of the witnesses to the alleged revocation also consented to by the petitioner herein, is granted.

The examination of Gerald J. Barre, Cecile M. Bergold, Cecile F. Bergold Whelan, and the petitioner will take place at the Surrogate’s Court on June 12,1962, at 2:00 p.m.

Settle order on five days ’ notice, with three additional days if service is made by mail.