In re Proceedings for the Probate of the Will of Torkington

Majority

p. 426

In the Matter of Proceedings for the Probate of the Will of Sarah R. Torkington, Deceased.

(Supreme Court, General Term, Fifth Department,

Filed June 20, 1894.)

Headnote

Release—Validity.

A release of an Interest in an estate, without naming a releasee, is invalid.

Appeal from a decree admitting will to probate.

John R. Fanning, for app’lt; George A. Carnahan, for resp’t.

—The will of Mrs. Torkington was offered for probate by the executrix, Laura M. Wackerman. Emma J. Chapman, a daughter of the testatrix, contested the probate of the will, upon the grounds that the testatrix was at the time of executing the will of unsound mind, memory, and understanding, and was not competent to make the will; that it was not her free, unconstrained, voluntary act; and that it was not executed in conformity with the requirements of the statute. The proof in favor of probating the will was so clear and satisfactory as to leave scarcely a doubt as to its being the will of the testatrix, and that the formalities of the statute were fully complied with in its execution. The contestant called her brother, George W. Bumble, as a witness for the defense. He was a son and heir at law of the testatrix. The contestant offered to show by the witness that he was present on the morning of the day the will was executed, and saw the person who was in attendence upon the testatrix administer to her an opiate, called upon the trial a “suppository.” The testimony was objected to by the proponent, upon the ground that the witness was not competent to testify to the transaction, under § 829 of the Code of Civil Procedure. The objection was sustained. The contestant duly excepted. Her counsel thereupon produced an instrument in the words and figures following: “To the Hon. Joseph A. Adlington, Surrogate of Monroe County: I, George W. Bumble, one of the legatees, heirs at law, and next of kin of Sarah B. Torkington, deceased, do hereby renounce and release all my interest, of whatsoever name and nature, in and to the estate of said deceased as legatee or otherwise. Witness my hand and seal, this 27th day of December, 1892.

“George W. Bumble. [Seal.]”

p. 427

Rumble testified that he executed this instrument. No releasee is named in the instrument, and there was no proof that it had ever been delivered to any one. The surrogate held that the instrument did not qualify the witness to give the testimony. The contest being made upon the ground of the incapacity of the testatrix to make the will, and there being, as we think, no valid release proven, the testimony was properly rejected. Fighmie v. Taglor, 68 Hun, 573 ; 52 St. Rep. 569 . But if it should be held that the evidence was competent, and that its exclusion was error, it was, we think, under the circumstances of the case, a harmless error; for an examination of the evidence satisfies us that, had it been admitted, the result of the contest would have been the same; for, the due execution of the instrument having been so clearly and satisfactorily proven, this evidence, had it been admitted, would not probably have affected the result. The appellant was not, therefore, prejudiced by the exclusion of the evidence offered. It is provided by § 2545 of the Code of Civil Procedure that a decree of a surrogate admitting a will to probate shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.

The decree appealed from should be affirmed, with costs of this appeal to be paid by the contestant personally.

All concur.