Order entered March 16, 1966, directing that a commission issue to inquire by a Sheriffs jury into the matter set forth in the petition, unanimously modified on the law, the facts and in the exercise of discretion, to the extent of vacating the commission and directing that the question of fact of the competency of the alleged incompetent shall be tried by a jury at a Trial Term of the Supreme Court appointed to be held in New York County commencing on the 6th day of June, 1966. We think in the interests of justice and expeditious disposition such a procedure is desirable (Matter of Grau, 205 App. Div. 893, Nos. 1, 2). Costs and disbursements will be allowed all parties filing briefs, payable out of the estate, in the event, and only in the event that there is an adjudication of incompeteney. Otherwise the disposition is without costs or disbursements to either party. Order entered April 21, 1966, herein appealed from, unanimously affirmed, with $30 costs and disbursements to all parties filing briefs, payable out of the estate, in the event and only in the event there is an adjudication of incompeteney. In the absence of such an adjudication no costs or disbursements will be allowed. Settle order on notice fixing date for examination to proceed.
Concur — Breitel, J. P., MeNally, Stevens and Eager, JJ.