
    James H. Mead, Respondent, v. Minnie A. E. Cavanagh and Nellie C. Herdman, as Executrices, etc., of Mary A. Mead, Deceased, Appellants.
    
      (Supreme Court, App. Div., Third Dept.,
    
    
      March 4, 1914.)
    Decedent’s Estate—Action fob Services Rendered Decedent—Evidence—Effect of Revocation of Will upon the Competency of an Attorney Who Was a Witness.
    Action to recover for services rendered and' goods furnished a testatrix during her lifetime. Evidence examined, and held, that a judgment in favor of the plaintiff should be affirmed.
    
      It seems, if a testatrix waive the seal of confidence by requesting her attorney to witness her will, she may annul such waiver by revoking the will and the attorney thereby becomes incompetent to testify as to its execution, notwithstanding the provisions of section 836 of the Code of Civil Procedure.
    Appeal by the defendants, Minnie A. E. Cavanagh and another, as executrices, 'etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 5th day of September, 1913, upon the report of a referee appointed to hear and determine the issues. The judgment was for $2,499.20 and costs, $2,000 of which sum was for services and $499.20 for goods furnished.
    Louis E. Walrath, for the appellants.
    Franklin C. Keyes [W. H. Johnson of counsel], for the respondent.
   Kellogg, J.

The defendants’ testatrix and her husband were, in their old age, living alone at the village of Laurens in a house owned by her of the value, as appears by the appellants’ brief, of $1,250, and at the time of her death, February 21, 191.1, she had personal property of the value of $517.83. The plaintiff, a nephew of the husband, quit his employment as clerk in a grocery store at Oneonta, where he was earning $10 a week, returned to Laurens August 24, 1903, and entered the family of the testatrix for the purpose of nursing her husband and assisting them, and continued in that service until March 3, 1904, when the husband died, and on March 31, 1904, he received $143 as compensation for those services. After the husband’s death he continued to reside with her until the time of her death, managing the place and taking care of her. The evidence of many credible witnesses shows that she stated that she was to pay him therefor and that he was to have all her property if he remained with her.

It appears by competent ‘evidence that about March 1, 1910, she made a will. In the year 1910 she stated that she had made a will and willed her property to the plaintiff for coming there and taking care of her; that she had made Estelle Bissell (one of the principal devisees) the same offer that she made to the plaintiff — that if she stayed with her during the time she lived and took care of her she would have her property — and she would not do it, and she made plaintiff the same offer and when she got through he was to have her property.

From the fact that the plaintiff entered the household in the first instance as an employee, and from the entire evidence in the case, it is clear that it was the understanding that he was to be paid for the services he rendered her, and was to have her property for taking care of her. During the time he earned some money working for others, which was used for the support of himself and the testatrix and for maintaining the house. January 12, 1911, Estelle Bissell, a niece, came to the house and remained there, and on the 16 th day of February, 1911, the testatrix made the will, giving her property principally to her nieces, with a legacy of $100 to the plaintiff. The judgment upon all the facts is just and should be sustained.

There is some trouble with reference to the evidence of th^ witness Keyes, the attorney who drew the will in 1910 and was a subscribing witness thereto. He swore to the execution of a will which gave to the plaintiff the house and lot and furniture, reciting that it was in payment of services rendered by him to the time of her death, and he testified to the directions given by her as to the execution of the will which confirmed the plaintiff’s claim that he was to have the property for taking care of her during her life. This testimony was objected to upon the ground that the witness was incompetent under sections 835 and 836 of the Code of Civil Procedure. There is other competent evidence as to the execution of a will at this time, but the particulars of it do not appear. This will was clearly revoked by the will made a few days before her death, and the evidence, therefore, was not offered in a proceeding for the probate of the will, but was offered for the purpose of showing an admission. Section 836 of the Code of Civil Procedure provides, among other things, that it shall not “ disqualify an attorney in the probate of a will heretofore executed or offered for probate, or hereafter to be executed or offered for probate, from becoming a witness as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto.” There seems to be substantial reason for saying that the witness was incompetent to testify to the execution of the paper or to statements made by the alleged testatrix at the time of its execution. If the testatrix waived the seal of confidence by requesting her attorney to witness her will, she annulled such waiver by revoking the will. The alleged admission was merely cumulative; the facts admitted had been so abundantly proved by other competent evidence that the evidence of the attorney could not have affected the result. The judgment is, therefore, affirmed, with costs.

Judgment unanimously affirmed, with costs.  