
    In the Matter of the Probate of the Will of Francis W. Lasak, deceased.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Wills — Probate—Executor has no power to discontinue.
    An executor who presents a will for probate is not a party to the record in such a sense as to empower him to discontinue the proceedings. He cannot suppress the will before it is offered for probate or afterwards.
    3. Same — Evidence.
    A daughter of deceased, whose interest was adverse to the will, but who did not answer, was allowed to testify, without objection, that testator had told her that the executor helped him make the will, and that he was ' glad his son, who had disgraced his name, was dead. Held, that such personal communications were properly stricken out on notice.
    3. Same — Undue influence.
    Ho evidence of undue influence can be drawn from the single fact of inequality in the will, where full and complete proof of testator’s capacity is given.
    Appeal by Mrs. Antoinette Lucinda Schermerhom from decree of surrogate admitting the last will and seven codicils of decedent to probate.
    
      Robert Sewell, Christopher Fine and Aaron Kahn, for app’lt; Edgar M. Johnson, for resp’ts, Mrs. O. J. Cuthbert and her sons ; Geo. G. Reynolds, for resp’t, Mrs. Y. A. McKenzie; Edward T. Bartlett, for resp’t, American Female and Guardian Society, etc.; F. B. Van Vorst, for resp’t, Children’s Aid Society; S. B. Brown-ell., for ex’r, resp’t; Bonohue, Newcombe & Cardoza, for resp’t, Mrs. C. D. Chau vet; Chas. F. Mac Lean, for resp’t, Margaret Ives.
   Barnard, P. J.

The competency of the testator was clearly proven. The testator died in February, 1889, and he left a testamentary disposition of his property evidenced by a will and seven codicils. The will was executed 11th February, 1883, and the last codicil on the 14th April, 1884.

The will and the first five codicils are witnessed by the same persons, William G. Lathrop and S. B. Johnson. The two last codicils are witnessed by Horace S. Ely and John A. Ely. All these witnesses were called and all testify clearly and particularly to the formal execution of the several papers ; that the testator’s mind was clear and calm and that he was under no restraint and subject to no apparent importunity or influence. The witnesses were intelligent business men and their testimony covered a considerable portion of the testator’s latter years. The surrogate was called upon under this evidence to decree probate of the several papers propounded.

There was no error committed upon the trial. John G. Wendel was named as- executor in the will. He made a petition for probate and upon it citations were issued to all parties interested in the estate. Answers were put in and the executor employed an attorney who called and examined the several witnesses to the will. He then moved the court to permit him to withdraw, and subsequently to dismiss the proceedings. This motion was properly denied, so far as a dismissal was asked for of the prohate proceedings. The executor need not apply for probate and need not. be cited to either support or oppose probate. If he does apply for probate he has no active duty to perform, but may remain silent until the surrogate causes the witnesses to the will to be examined and an order made as to probate. It would be a strained construction of the law as to probate of wills if the court should be compelled to hold that after a will was presented for probate and presumptively proven by the executor, that he could discontinue the whole proceedings. He was not a party to the record with any such power. The executor could not suppress a will before it be offered for probate or afterwards.

Mrs. Chauvet, who was a daughter of deceased, was sworn as a" witness upon the trial. Her interest was adverse to the will,, but she had made no answer. On the 31st May, 1889, she appears to have been permitted to testify to certain communications with her father without objection. On the 20th June, 1889, and before her examination was closed, on motion of an attorney who was supporting the application for probate, this evidence was stricken out. Assuming that testimony received without objection belongs to the case and may not be stricken out, no-sufficient error was committed to call for a reversal of the judgment ; the evidence is returned and there is nothing in it which tends either to show incapacity or undue influence. The testator had said to her that the executor had helped him make his will, and that he was glad his son, who had disgraced his name, was dead. The ruling that such personal communications as were offered be excluded, was correct. Wadsworth v. Heermans, 85 N. Y., 639; Holcomb v. Holcomb, 95 id., 316.

The evidence of undue influence to be drawn from the inequality of the will has been so repeatedly rejected by the-court-of appeals as insufficient for that purpose standing alone, that no-argument can be based thereupon, standing alone as it does with full and complete proof of the testator’s capacity.

The decision should, therefore, be affirmed, with costs.

Dykmajst and Pratt, JJ., concur.  