The appellant Baron is one of the executors named in a writing offered for probate as the last will and testament of Abraham L. Erlanger, deceased. The appellant Bergman is one of the legatees named therein and one of the petitioners for its probate.
The respondent herein claims to be the common-law wife of the deceased and has filed objections to the probate. A motion was made to strike out her objections upon the ground that she had not been the wife of the deceased, was not his widow, and, therefore, not interested in the estate and so riot entitled to object to the probate.
After argument on this motion before the surrogate, an order was made by him directing a trial of the preliminary question of whether the contestant was in fact the widow of the deceased and so entitled to file objections. In the meantime decision on the motion was held in abeyance. Thereupon, the respondent moved for the examination of the appellants before trial as parties defend*74ant. This examination was with respect to the preliminary issue to be tried.
It is well settled that an executor and legatee named in an instrument offered for probate are adverse parties and that examinations before trial are proper in the Surrogate’s Court. (People ex rel. Lewis v. Fowler, 229 N. Y. 84.)
The argument had before us proceeded upon the theory that the order could be sustained only if the examination sought is to be regarded as one in a special proceeding. We are of opinion that the examination sought was in a special proceeding, namely, the proceedings for probate. It is true that the issue whether the respondent was the widow of the deceased arises both on the motion to strike out her objections and upon her objections filed in the main proceeding. If the trial of the preliminary issue as ordered by the surrogate was to try out solely upon a motion the issue as to the respondent’s marriage to the deceased, then no examination before trial would have been proper. Such an application would be neither an action nor a special proceeding.
However, the surrogate saw fit to order the trial of the issue of the marriage of the respondent to the deceased, not upon the motion as such but as an issue in the special proceeding itself. Under the provisions of section 443 of the Civil Practice Act, he deemed it expedient to order the preliminary trial of one of the main issues in such proceeding which issue arose upon the petition for probate and the objections filed thereto by the respondent. Such was the proper procedure. (Matter of Cook, 244 N. Y. 63.)
The order itself directed that the issue of whether the contestant was the wife and is now the widow of the deceased be tried before the surrogate before the trial of any of the other issues attempted to be raised by the respondent “ in said probate proceeding.” It held in abeyance the disposition of the motion to strike out the objections until after the determination of the preliminary issue so ordered to be tried. The right to an examination before trial in a proper case on an issue in the main proceeding is unquestioned. (People ex rel. Lewis v. Fowler, supra.)
However, in the circumstances presented and considering particularly the relationship -of the parties, we do not think that this is a proper case for the exercise of the court’s discretion in granting an examination before trial.
It follows, therefore, that the order appealed from should be reversed as a matter of discretion, and the motion denied.
Sherman, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion denied.