In re Scheuer , 5 Dem. Sur. 369 ( 1887 )

The Surrogate.

Letters of administration upon the estate of this decedent were granted to his aunt and another on November 29th, 1886. On December Yth, the petitioner commenced proceedings for the revocation of those letters, claiming that she was herself, as the widow of decedent, entitled, in priority, to administer.

Numerous affidavits have been submitted by the respective parties, some supporting, some attacking the allegations of the petition. I am asked by counsel for the respondents to disregard all statements made by the petitioner as to personal transactions and communications between herself and the decedent upon the ground of her incompetency under § 829 of the Code of Civil Procedure to give testimony in that regard.

The respondents have put in evidence declarations of the decedent denying that the petitioner was his wife, and disclosing what he claimed to be the relations between himself and her, and the circumstances under which she made the Chicago affidavit. By pursuing this course, the respondents have relieved the petitioner from the disqualification established by § 829 (Smith v. Crawford, 3 Hun, 585; Marsh v. Brown, 18 Hun, 319; Potts v. Mayer, 86 N. Y., 302; Wadsworth v. Heermans, 85 N. Y., 639; Estate of Stanley, N. Y. Surrog. Dec., May 27th, 1886). I cannot make proper disposition of the matter here at issue upon the affidavits submitted by the respective counsel; the case is peculiarly one in which an oral examination and cross-examination of witnesses is desirable if not indeed essential for the discovery of the truth.

There must be an order of reference.