
    In the Matter of the Estate of Lillian M. Hens, Deceased.
    Surrogate’s Court, Nassau County,
    May 8, 1963.
    
      William J. White for Theresa M. Hens and another, petitioners. Frederick Edel, as special guardian for Norbert Hens, Jr., and any and all unknown distributees, heirs at law and next of kin of Lillian M. Hens, deceased.
   John D. Bennett, S.

In this probate proceeding the decedent by codicil reduced a general legacy in paragraph Second in the original amount of $500 to $50.

The codicil, however, is witnessed by the two petitioners who are the residuary beneficiaries of this estate.

Under section 27 of the Decedent Estate Law, a devise or bequest to a subscribing witness whose testimony is necessary to the probate of an instrument is void.

Since the petitioners are not the subscribing witnesses to the original will, the residuary bequests to them are not invalid under section 27 (Matter of Johnson, 37 Misc. 334),

However, insofar as the petitioners will benefit by the codicil to the extent of increasing the total of their shares by $450, such increased benefit is void, and since there is no other disposition of such sum the decedent must be held to have died intestate as to that amount (Matter of Hunt, 122 N. Y. S. 2d 765, 767).

The propounded instrument, including the codicil, will be admitted to probate as the last will and testament of the testatrix.  