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Motion is made to strike out a counterclaim interposed in this action wherein plaintiff seeks to compel defendants to deliver to her a bank passbook of an account in the Interest Department of the ABC Trust Company of Albany issued to and opened in the name of ‘Ms. B, in Trust for Ms. OD.’

Ms. OD is the plaintiff and Ms. B is now deceased. The defendant Mrs. V is the named executrix in the last will and testament of Ms. B, which has been offered for, but as yet has not been admitted to, probate. The co-defendant Mrs. M, an attorney, drew such will, was a subscribing witness thereto, and is acting as the attorney for Mrs. V in offering it for probate. It is alleged that such defendants have possession of the passbook, without which plaintiff cannot withdraw the fund, and that they have refused to deliver it to her upon demand.

The defendants’ answer admits all of the allegations of the complaint except that plaintiff ‘is entitled to possession of the said bank book’ and it also contains certain matter asserted as ‘a separate defense and by way of counterclaim.’ In that contention defendants allege the opening of the account by Ms. B in form in trust for plaintiff, as well as the making of the will hereinabove referred to. They further allege that objections to the probate of the will have been made by certain persons, to wit, KK, QQ and ET, who would be the intestate distributees of Ms. B, of whom plaintiff is not one; that such objections, among other things, challenge her testamentary capacity; that the funds going into the bank deposit set up for plaintiff derived from a sale of real property of the deceased, and that no part thereof ‘was produced or provided by the said Ms. OD;’ that the bank account was set up approximately two months prior to the execution of the will; that if such objections to it are sustained the validity of the disposition of the aforesaid bank account likewise will be attacked; that the defendants have been presented with adverse claims to the funds represented by such bank account by both plaintiff and such distributees of Ms. B, and that they ‘cannot determine, without hazard to themselves, the right of the said persons to the said property and are exposed to double liability as the result of such adverse claims.’ Defendants assert their willingness to deliver the passbook and the fund it represents to whomsoever shall be adjudged entitled to it. They allege that they have impleaded the distributees who make the adverse claims as aforesaid by service upon them of a summons and interpleading complaint, together with a copy of the original summons and complaint served upon them in this action.’

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