In re  Wilson

• Decision Date: 26 October 1886
• Citation: 103 N.Y. 374,8 N.E. 731
• Parties: In re Probate of the Last Will and Testament of WILSON, Deceased.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 374

8 N.E. 731

In re Probate of the Last Will and Testament of WILSON, Deceased.

Court of Appeals of New York.

October 26, 1886.

Proceeding for probate of will. Judgment for executor. Contestants appeal.

Henry Bacon, for appellants.

B. R. Champion, for respondent.

RUGER, C. J.

One Hart was executor under the will of John Wilson, deceased, and also a legatee therein. He presented the will for probate, and offered himself as a witness to prove personal conversations and transactions had by him with the testator, at the time of its preparation, in relation to its contents and execution. It was objected that he was incompetent, under section 829 of the Code of Civil Procedure to testify to such transactions and conversations, both as a party to the proceeding, and also by reason of his interest in the event. The proponent therefore put in evidence a release to the administrator of his interest as legatee under the will. The objection was thereupon overruled by the surrogate, and this is now alleged as error.

We think the questions presented have been settled by authority against the contention of the appellant. The interest which the witness might have taken as legatee under the will was effectually discharged by the release. It was an instrument under seal, importing a consideration, and its effect was to swell the residuum of the estate, and increase the amount to be distributed under the provisions of the will. The residuary legatee took nothing thereby in the right of the legatee, and did in no sense succeed to the sum derived from, through, or under any right of the legatee.

Neither was the witness incompetent by reason of being a party to the proceeding, or as being interested by way of commissions as executor. It was held in the case of Children's Aid Soc. v. Loveridge, 70 N. Y. 387, that an executor was not such a party to the proceedings to prove a will as would preclude him from testifying to personal transactions with the deceased testator, within the spirit and meaning of section 399, Code of Civil Procedure.

Neither did his right to compensation as executor render him incompetent, by reason of interest, to testify to such transactions. This ruling was approved and followed in Rugg v. Rugg, 83 N. Y. 592. The same question was decided in a similar manner in Reeve v. Crosby, 3 Redf. 74. In McDonough v. Loughlin, 20 Barb. 238, the proposed witness was an executor and trustee under the will, as well as a subscribing witness. The question was whether the execution of the will could be proved by him without working a forfeiture of his appointment as executor and the devise to him as trustee, under 2 Rev. St. p. 65, § 50, avoiding any beneficial devise, legacy, interest, or appointment to subscribing witnesses. It was held that it could, inasmuch as the devise to him was in trust, he taking no beneficial interest therein, and his appointment as executor was fiduciary, and not for his own benefit. It was said that the commissions were given by statute as compensation for services, and did not accrue to the executor as a gratuity by force of...