In the Matter of the Probate of the Will of Bernard Schmidt, Deceased. Marie Schmidt, Respondent; Erna Eckrich et al., Appellants

In the Matter of the Probate of the Will of Bernard Schmidt, Deceased. Marie Schmidt, Respondent; Erna Eckrich et al., Appellants. [MAJORITY] In a probate proceeding, the contestants appeal, as limited by their brief, from so much of an order of the Surrogate’s Court, Suffolk County, dated July 25, 1967, as did not include certain matter within the six framed issues for the jury trial directed in the order. Order modified by adding thereto the following as such issues: (a) Did the said Bernard Schmidt know the contents of the paper writing dated January 29, 1963, offered for probate herein; (b) Did the said paper writing dated January 29, 1963 express the testamentary disposition intended by the said Bernard Schmidt. As so modified, order affirmed insofar as appealed from, without costs. The issues thus added are proper (see, Matter of Lewis, 23 A D 2d 716); and the refusal of the Surrogate to include them in the order appealed from was an improvident exercise of discretion. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.