
    Matter of the Probate of the alleged last Will and Testament of Harriet Chase and Codicil thereto.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1886.)
    
    1. Evidence—Will—When draughtsman oe a wild not incompetent to testify— Code Civil Peo., § 835.
    The draughtsman of a will, though he is an attorney, is not incompete./t under O. de Civil Procedure, § 835, to testify in support of the will • to instructions received from the testator in respect to the provisions to he incorporated in the will.
    2. Same—When a donee of a power, with compensation for “services and cake,’’ not disqualified under Code Civil Pro., § 829.
    Where the will directed that two persons named, one of whom was Helen A. Benrup, should ha e power to superintend and care for the testatrix’s invalid son, and provided that the executors should pay them such reasonable sums from time to time as they or either of them may fairly expend for the purposes af rcsaid and such reasonable compensation as they should respectively receive for their services or care.” Held, that He¡en A. Bearup was not beneficially interested, or disqualified from testifying to the execution of the will under Code Civil Procedure, § 839.
    Appeal from a decree of the surrogate of Jefferson county denying an application to admit the alleged will of Harriet Chase, deceased, to probate.
    The will of testatrix directed that Helen A. Bearup and another named, have the care and charge of an invalid son of testatrix, and the e'xecutors were directed to pay the persons named, for such care, “ such reasonable sums from time to time as they or either of them may fairly expend for the purpose aforesaid, and such reasonable compensation as they should respectively receive for their services or care. ” '
    
      Lansing & Rogers, for executor and other app’lts; C. , W. Thompson and Hannibal Smith, for contestants.
   Follett, J.

Appeal from a decree of the surrogate of Jefferson county, refusing to admit to probate the will and codicil of Harriet Chase, deceased.

The draughtsman of a will, though life is an attorney, is not incompetent under section 835, Code Civil Procedure, to testify in support of the will, to the instructions received from the testator in respect to the provisions to be incorporated in the will. Sheridan v. Houghton, 6 Abb., N. C., 234; S. C., 16 Hun, 628; affirmed, 84 N. Y., 643; Matter of Chapman, 27 Hun, 573; Whelpley v. Loder, 1 Dem., 368; Hebbard v. Haughian, 70 N. Y., 54. A trustee under a will, who is entitled to a reasonable compensation for his services, is not incompetent under section 829 of the Code of Civil Procedure, to testify in support of the will. Code of Civil Procedure, § 2544; Rugg v. Rugg, 83 N. Y., 592; In re Will of Huestis, 23 N. Y. Weekly Dig., 224. Proponents offer to prove, by the draughtsman of the will (who is an attorney and also a trustee under the will), the instructions received, and they were carried out by the will, was erroneously rejected. The ruling that Helen A. Bearup is incompetent, under section 829, Code Civil Procedure, to testify to personal transactions with the testator, was error. She is not a legatee or devisee, and falls within the rule applicable to executors.

. It was error to permit the contestant to prove, over proponent’s objection and exception, by Munson Cook, the statements of the draughtsman; and it was also error to permit the contestant to prove like statements by Emma Lawton. The declarations of the draughtsman in respect :to the mental condition of the testatrix were incompetent. -It was incompetent for the contestants to show by these witnesses that the draughtsman made statements indicating that, in his opinion, the testatrix was incompetent to transact business. Had he testified he might have been contradicted, but his evidence was excluded by the surrogate. These errors are not such as may be disregarded under section 2545, Code Civil Procedure, because they bear directly upon the issue of fact upon which the decree rests.

The decree of the surrogate is reversed and a new trial is ordered before a jury upon the issues to be settled, with costs to abide the event.

Boardman, J., concurs.

Hardin, P. J.

Because Helen A. Bearup was the donee of a power, with compensation for “services and care,” it does not follow that she was beneficially interested, or disqualified from testifying to the execution of the will. McDonough v. Loughlin, 20 Barb., 238; Pruyn v. Brinkerhoff, 57 id., 176; S. C., 7 Abb. (N. S.), 400; Children’s Aid Society v. Loveridge, 70 N. Y., 387; Rugg v. Rugg, 21 Hun, 383; affirmed, 83 N. Y., 592; Code Civil Procedure, § 2544.

I concur in Brother Follett’s opinion, and agree that the erroneous rulings by the surrogate call for a reversal  