In re the Estate of Smith , 300 N.Y.S. 919 ( 1937 )

Appeal by executors from an order of the Surrogate’s Court of Westchester county requiring them in their account to include petitioner as legatee because of a money legacy bequeathed to her in a codicil to the testator’s will, which bequest was the sole testamentary provision in the codicil. Order affirmed, with ten dollars costs and disbursements to respondent, payable out of the estate. Petitioner, respondent, was an attesting witness to the will, which could not be proved without her testimony, but she was not a beneficiary thereunder. By the codicil she received a specific bequest; but she was not an attesting witness to that instrument. The codicil was complete in itself. It was independent of the provisions in the will. It was, therefore, a separate testamentary instrument entitled to separate probate; and the bequest to petitioner was not void under section 27 of the Decedent Estate Law. (Matter of Emmons, 110 App. Div. 701, 704, 705; Matter of Pardy, 161 Misc. 77, 83, 84.) Hagarty, Davis, Adel, Taylor and Close, JJ., concur. [165 Misc. 36.]