3 Barb. 410 | N.Y. Sup. Ct. | 1848
Lead Opinion
The first question arising oif this appeal is, whether the subscription by David Caw, the respondent, as a witness to the will of the testatrix, avoids the' legacy therein bequeathed to him. The revised statutes (2 vol. 65, § 50,) contain this provision on the subject: “ If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate, shall be made to such witness, and such will carinot be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns such witness or any claiming under him; and such person shall be a competent witness and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made.” The 40th section [Id; 63,) requires, among other things, as a requisite to the valid execution of a will, that “ There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the' end.of the will, at the request of the testator.” The 10th section of the act of 1837, (Laws of 1837, p. 526,) requires that in all cases “ two at least of the witnesses to the will, if so many are living in this state, and of sound mind, and are not disabled from age, sickness or infirmity, from attending, shall be produced and examined.” And the 11th section provides, “ that in case the will is contested, and any person having the right to contest the same, shall before probate, file with the surrogate a request in writing that all the witnesses to such will shall be examined; then all the witnesses to such will, who are living in this state, and of sound mind,- and who are not disabled from age, sickness or infirmity, from attending, shall be produced and examined.”
All the subscribing witnesses to this will resided within this state, and were in fact examined as witnesses. And none of them labored under any of the disabilities above mentioned. From the foregoing legislative provisions it tó obvious, that all the subscribing witnesses to a will may in certain contingencies be indispensable to the proof of the will. To render each witness competent, his legacy is declared to be void. This
Although the valid execution of this will cannot be questioned, on this appeal, yet the foregoing considerations' vindicate the policy of the rule which avoids a legacy to a subscribing witness. On principle it should avoid it, in every case, whether the probate be contested or not. The revised statutes (2 vol. 58, § 12,) originally required all the witnesses to the will who were living, and in this state, and of sound mind, to be produced and examined. This left but a small scope for the ope
But if it was competent to prove that Mr. Caw did not sigo the will, as a witness, at the request of the testatrix, that fact could not be provecí by his own affidavit, taken before the surrogate, when the will was admitted to probate. What a party swore to on a former occasion, cannot be given in evidence ip his favor, though it may be against him. A party cannot thus manufacture testimony for himself. Nor does the certificate of
The suit by the executors, before the surrogate, on rendering their fina] accounts, is between them and the legatees. Neither the beirs -nor next of kin are parties, as such. (2 R. S. 92.) Nor need' they be cited, on passing the accounts of the executors, unless they happen also to be creditors or legatees, or both; and it is then in the latter character that they are cited. The decision of the surrogate, therefore, on granting probate, that Caw was not a witness, was extra-judicial and void, and it was between other parties than those against whom it was given in evidence. (See 1 Phil. Ev. 322 et seq.)
The decree of the surrogate was erroneous and must be reversed. And as this court is bound on this reversal, to make such decree as the court below ought to have made, it becomes
As the happening of the event on which the title of the church to the legacy depended, has beén defeated by the dissolution of the pastoral relation between Mr. Caw and the church, the legacy can never vest in the church. It has been shown already, that the bequest over to Mr. Caw was void by reason of his being a subscribing witness to the will. The legacy therefore falls into the residue, and goes to Alexander Campbell, the residuary legatée.
The decree of the surrogate, so far as it directs the payment, by the appellants to the respondent, of the legacy of five hundred dollars, together with costs, must be reversed; and the résidue of the decree must be modified accordingly. No costs will be given to éither party on this appeal, as against the other.
Concurrence Opinion
concurred in the reversal of the decree of the surrogate, but abstained from expressing an opinion as to the further disposition of the legacy.
Decree of surrogate reversed^ without costs.