
    
      The final accounting in Elihu Smith’s Estate.
    
    How an estate is to be settled on accounting, where a son of the testator was a subscribing witness to the will, examined on the probate. .
   The Surrogate.

Upon this final accounting, the question arises as to what share of the assets is distributable to John B. Smith, one of the testator’s sons. The estate is wholly personal, and the will is one of personal property only.

John B. Smith was one of the two subscribing witnesses to the will. The statute therefore required his testimony to prove it, he being a resident of this State, of sound mind, and not disabled from attending before the Surrogate. (3 R. S., 5th ed., § 56, p. 148.) The legacy made to him by the will was therefore void (§ 45, p. 146, same vol/ame), and lapsed into the residuum of the estate. But (under section forty-six) he is still entitled to the same distributive share as if his father had died intestate; and the valid legacies given by the will must each abate in proportion, if necessary, in. order to make up the sum of this distributive share.

It appears from the accounts of the executors, which are not contested, that the amount of assets in their hands for distribution is $18,367.04. The testator left no widow, but two other children beside John B., and the descendants of a fourth. John B. therefore takes one-fourth the distributive assets, and the remainder is to be divided in satisfaction of the legacies, each of which, as it now appears, must abate. The accounts must be sent to an auditor to report a summary statement.  