In re the Probate of the Will of Masterton — 19 N.Y. St. Rep. 789

Majority

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In the Matter of the Probate of the Will of Mary Masterton, Deceased.

(Surrogate’s Court, Westchester County,

Filed February, 1888.)

Headnote

1. Will—Peobate of—Code Ciy. Peo., §829 — When peeson lntebESTED UNDEE.

Under Code Civil Procedure, section 829, in order to render a person incompetent to "be examined upon an application ior the probate of the will as to conversations with the decedent because of interest, it must appear that such interest is a present, certain and vested one, and not an interest uncertain and remote or contingent. Following Hobart v. Hobart, 62 N. Y., 80 .

2. Same—When paety competent.

When the will in question was offered for probate it appeared that decedent and one C. were two maiden women who were sisters, and had lived together for years, owning and enjoying more or less real and personal property, wholly or in part, together. The alleged will gave the bulk of the estate to C. for life, with the remainder to the family of T., who was named executor and who was one of the subscribing witnesses. After decedent’s death C., who was sole heir and next of kin, evidently being ignorant of the existence of a will, obtained letters of administration on decedent’s estate, and as such administrator sold certain of the real property affected by the will, and died, leaving a will whereby she gave a legacy to T., who was called as a witness by contestant and asked to state certain conversations had by him with the testator which bore upon the subject in dispute. It was objected that T. was disqualified as being interested because the admission of testator would deprive him of the legacy bequeathed by O. Held, that it was competent for him to answer.

On proceedings for the probate of the paper alleged to be the last will and testament of Mary Masterton, which was dated in August, 1878, it appeared that she had a sister Caroline, both of whom resided in Tarrytown together, and owned and enjoyed real and personal property, wholly or in part, in common. That neither of them were married. The alleged will was executed at Albany while Mary was visiting her cousin, Eobert F. Todd, and his family.

Mary had no nearer relatives than cousins, with the exception of her sister. She died at Tarrytown in 1883, and not long afterward Caroline, not knowing of the existence of the will, applied for, and obtained, letters of administration of the estate, and took possession thereof and sold and conveyed part of the real estate. Eobert F. Todd, who wrote Mary’s will by which the bulk of the estate was given to Caroline for life, with remainder to his family, and in which he was named as executor and to which he became a subscribing witness, was aware of what Caroline did. Afterward, Caroline made an alleged will wherein she disposed of her whole estate, including a portion which lie claimed to have received as heir and next of kin of her sister Mary, and died in 1887. Not long after the death of Caroline the will of Mary was offered for probate, and also that of Caroline. Objections were filed to both. The con

p. 790

test as to Caroline’s will was still pending when this opinion was wiitten.

One John A. Todd, who was named as legatee in Caroline’s will, was called as a witness by the contestant, md asked, among other things, to state certain conversations he had had with Mary bearing upon the subject of the controversy. The evidence was taken; subject to the objection that it was inadmissible under Code Civil Procedure, section 829.

L. T. Yale, for proponent; Robert F. Todd and J. S. Millard, for Harriet Dibble, heir-at-law.

Although it may have little bearing upon the final result of this case, it is proper that, in the outset, the objection to the testimony of the Rev. Dr. Tood should be considered and disposed of. It seemed to be conceded that, if this will were established, he would be deprived of his legacy under Caroline’s will; but the latter is contested, and it is yet uncertain whether it will be admitted to or refused probate. This element of uncertainty rendered him competent to testify to Mary’s declarations. To render him incompetent, his interest must be a present, certain and vested one, and not- an interest uncertain, remote or contingent. Hobart v. Hobart, 62 N. Y., 80 . The objection taken is, therefore, overruled, and the testimy is received as taken. Any declarations made by Caroline, in the absence of Mary, must be disregarded, and it was so stated during the progress of the case.

It is not proposed here to enter into a minute examination of the testimony bearing upon the merits of the case, nor to pass judgment upon the amount of faith to be reposed in the somewhat remarkable evidence given by the proponent himself. In spite of the mists in which it is shrouded by his testimony, by the aid of other facts it seems very clear that the will in question was properly executed by a competent testatrix. By some of her letters and by oral evidence, it appears that she wished the fact of her having made a will to be kept from the knowledge of her sister. Her subsequent declarations in Caroline’s presence of an intention to make a will, and of the disposition she would make of certain articles, were evidently intended to confirm her sister in the belief that none had been made:- ' It is unimportant, perhaps, to know what her reasons therefor were, nor is it needful to speculate upon the effect a contrary course might have had in the way of avoiding litigation.

The usual decree admitting the will to probate will be entered, with costs to the proponent out of the fund.