Cornwell v. Woolley , 1866 N.Y. App. Div. LEXIS 114 ( 1866 )

By the Court, Lott, J.

It appears by the findings of the justice who tried this action, that Joel Parker, under whom the plaintiff claims the legacy in question, was a subscribing witness to the will by which it was bequeathed to him. It also appears that he was, at the time of the testator’s death, a non-resident of the state.

Although he was examined as a witness, on proving the will, it was not necessary that he should have been examined. The examination of such of the subscribing witnesses, only, as reside in this state is required. (Laws of 1837, eh. 460, §§ 10, 17.) This was therefore not a case where a devise or legacy to a subscribing witness is declared to be void by section 50 of the statute regulating the execution and proof of wills. (2 B. /S. 65.) That provision applies only where the “ will can hot be proved without the testimony of such witness,” and where he can be compelled to testify respecting the execution'of the said will, in -the same manner as if no such devise or bequest had been made.

The object of the provision was to secure the benefit of his testimony to the other parties entitled to take under a will, when it was indispensable and could be compelled. (See Caw v. Robertson, 1 Seld. 125.) It also contemplates a case where the witness, by reason of his interest, was incompetent to testify; for it provides, after declaring the legacy-void, that he “shall be compellable to testify,” &c.

[Kings General Term, December 10,1866.

As interest no longer renders a person incompetent as a witness, there is reason for the position of the plaintiff’s counsel, that the section has no longer any application; but it is not necessary to decide that question.

Judgment affirmed.

Scrugham, Lott, J. F. Barnard and Gilbert, Justices.]