103 N.Y. 374 | NY | 1886
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, thereupon, 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 appellants.
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 *376 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 releasing legatee, and did, in no sense, succeed to the sum derived from, through or under any right of such 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 Society
v. Loveridge (
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 (
We find no cases in this State conflicting with the principles *377
laid down in those referred to. In Lane v. Lane (
There are no other objections made by the contestants appearing in the record which are open to consideration in this court. The executor, however, has appealed from so much of the judgment rendered by the General Term as awards costs to the unsuccessful contestants.
We are of the opinion that under section 2589 of the Code of Civil Procedure this appeal must prevail. That section lays down an express rule by which costs of appeal in that court must be regulated, and it authorizes costs to a successful party only. This was distinctly adjudged by this court in In re Budlong
(
The judgment of the General Term should be affirmed as to the probate of the will, and reversed as to the award of costs to the contestants, with costs to the executor to be paid out of the estate.
All concur.
Judgment accordingly.