#### Anna Isabelle Hutchinson, Respondent, *v.*Joseph T. McCaddon and Theodore D. McCaddon, Individually and as Executors of and Trustees under a Paper Propounded as the Last Will and Testament of Ruth Louisa Bailey, Deceased, and Lillie Elizabeth Harper, Appellants, Impleaded with Ralph Gage Spencer and Others, Defendants.

Second Department,

May 16, 1913.

Discovery—books and papers—injunction—moving affidavits insufficient.

Where the petition and accompanying affidavits, used on a motion by plaintiffs for discovery in an action to determine the validity of the probate of a will, give conclusions based upon information and belief with no facts stated as the source of the information, and fail to allege any facts tending to show a *priTha facie*case, and also fail to name or specify any books, papers or documents which could be used upon the trial, or that the executors have made any improper disposition of the *229property, so much of an order as grants discovery and inspection of the books, papers and documents of the deceased and of the executors, and grants an injunction restraining the executors *pendente lite*from making any disposition of the principal of the estate, should be reversed.

Appeal by the defendants, Joseph T. McOaddon and another, individually and as executors and trustees, etc., and another, from part of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of February, 1913.

*Delevan A. Holmes [Charles P. Rogers*with him on the brief], for the appellants.

*Arthur M. Johnson,*for the respondent.

Rich, J.:

This appeal is by the defendants Joseph T. and Theodore D. McOaddon, individually and as executors and trustees under the last will and testament of Ruth Louisa Bailey, deceased, and by the defendant Lillie Elizabeth Harper, from so much of an order as grants discovery and inspection of the books, papers and documents of the estate of James A. Bailey, deceased (the husband of Ruth Louisa Bailey, deceased), all of the books, papers and documents of said Ruth Louisa Bailey, deceased, and all the books, papers and documents of said Joseph T. and Theodore D. McOaddon, as executors and trustees, together with an injunction restraining the executors *pendente lite*from making any disposition of the principal of the estate of their testator. This action is brought under the provisions of section 2653a of the Code of Civil Procedure to determine the validity of the probate of the alleged will of said Ruth Louisa Bailey.

The complaint alleges upon information and belief that the will was not executed in conformity with law, the mental incapacity of the testatrix, and undue influence. The petition and accompanying affidavits upon which this order was granted give conclusions, based upon information and belief, with no facts stated as the source of the information. Nowhere are any facts alleged tending to show a *prima facie*case, or even of any reasonable probability that the plaintiff can succeed in the action. The only allegation in the petition that there are *230any books or documents in the hands of the executors and trustees is that the estate of the testatrix came to her largely from her deceased husband, and this averment is upon information and belief. No specific books, papers or documents are specified as possessing any materiality which could be used upon the trial of the action for any important purpose. The moving papers do not disclose any use which the plaintiff intends to make of any information she may acquire on a discovery, except a suggestion that it may be applied to some future application to the court, the nature of which is not disclosed. It is not pretended that the executors have made any improper disposition of the property which came into their hands, or that they are likely to do so.

The moving papers fail to show a proper case for so much of the order as is appealed from; it was improperly made and must be reversed.

The order in so far as appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Jenks, P. J., Burr, Thomas and Stapleton, JJ., concurred.

Order in so far as appealed from reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.