1 Pow. Surr. 231 | N.Y. Sur. Ct. | 1892
The objection to the testimony of the witness
Thornton is not well taken. The testimony is objected to’, first, because the witness is named in the will as an executor, and, not having renounced such appointment, is an interested party, within the meaning of section 829 of the Code. Loder v. Whelpley, 111 N. Y. 239, 18 N. E. Rep. 874, is cited as authority in support of this claim. That ease only decides that an executor who is also a legatee may release his legacy, and then be a competent witness in probate proceedings, although he has not- renounced his appointment; following In re Wilson, 103 N. Y. 374, 8 N. E. Rep. 731, which originated in this court
This testimony is also1 objected to because it discloses communications made by the deceased to the witness, who was his. attorney, in the course of professional employment. Code Civil Pro. section 835. In Re Coleman, 111 N. Y. 220, 19 N. E. Rep. 71, it was held that the testator waived, as he might do under section 836, the pledge of secrecy imposed by this statute at the time he requested his lawyer to’ become a witness to the will. The legislature, however, afterwards, in 1891, by an amendment to section 836, provided that the waiver must be made on the trial or examination. This will was executed January 29, 1892, and the .testator died February 21, 1892. The proceedings for the probate of the will were commenced April 14, 1892, and the witness Thornton was examined therein May 26, 1892. The legislature, by another amendment to section 836, which took effect May 12, 1892, provided that “nothing herein contained shall be construed to disqualify an attorney, on the probate of a will heretofore executed, * * * from becoming a witness as to its preparation and execution, in case such attorney is one of the subscribing witnesses.” So' that, the admission of the testimony of this witness was by legislative
Will admitted to probate.