2 Mills Surr. 82 | N.Y. Sur. Ct. | 1900
— Thomas P. Hodnett, a legatee named in the will, but not otherwise having any interest in the estate, was called as a witness, and a release executed by him was proved and offered and received in evidence and filed without objection. On the footing of this release he was permitted to testify as to the details of the execution of the will, against the objection of the contestants and under their exception. The ruling admitting this evidence is now asked to be reconsidered, and I haxe examined the contentions of the contestants with respect to it, only to be confirmed in my opinion of the correctness of my decision made at the trial. The facts in this case with relation to this point cannot be distinguished from those found in Matter of Wilson, 103 N. Y. 374. In that case, as in this, the witness who was called was a legatee under the will, and the release executed by him was produced at the trial. In the opinion of the court, it is stated that the release was “ to the administrator,” but on examination of the record of the appeal, I find that it was something different from this. It recites the pendency of the proceeding to prove the will and that the witness is desirous of giving certain testimony in said proceeding which, under the laws, he is precluded from giving by reason of his interest, and proceeds as follows: “ Now, therefore, for the purpose of removing any and all such disqualifications, and
Decreed accordingly.