
    In the Matter of the Petition of Peter Hopkins v. Henry H. Lane, as Executor, to Revoke the Probate of the Last Will and Testament of Louise S. Hopkins, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Subrogate—When not disqualified to act by reason of interest— Code Civ. Pro.. § 3497
    The wife of the surrogate was a witness to the will in question, and the will gave a legacy to the church of which the surrogate himself was vestryman. Held, that these were not sufficient reasons to revoke the probate; that the surrogate himself had no interest in the will . that it was necessary to make the objection to his sitting as probate judge on that account under Code Civ. Pro , § 3497.
    Appeal from an order made by the surrogate of Westchester county, denying a motion to vacate a decree admitting a will to probate.
    The will in question was admitted to probate on the 16th December, 1886, and it is now sought to have the decree admitting the same to probate vacated. Among other provisions, the testatrix bequeathed a legacy as follows: ‘ ‘Fifth, T give and bequeath to the rector church wardens and vestrymen of St. Peter’s church, in the village of Peekskill, the sum of $500, for a stained glass window, or a lectern and pulpit (whichever the said rector, church wardens and. vestrymen shall deem more suitable), to be placed in St. Peter’s church, Peekskill, with the following inscription ‘In memory of Ezra, Susan, Harriet and Louise S. Hopkins.’ ” The eighth provision of the will is as follows ; “I give one pair of candlesticks to Mrs. Calvin Frost, and one pair tc Mrs. Owen T, Coffin.” The latter was one of two subscribing witnesses to the will, and is the wife of the surrogate, who is the senior church warden of the said St. Peter’s church.. The only next of kin of decedent is Peter H. Hopkins, an attorney-at-law. He appeared in person at. the time the will was proved and signed, and caused to be filed a writing, duly acknowledged, of which the following is a copy:
    “ Surrogate’s Court, Westchester County.
    “In the matter of proving the last will and testament of Louise S. Hopkins, deceased. I, the undersigned, heir and next of kin of Louise S. Hopkins, deceased, do hereby waive the issue and service of a citation in the matter of proving the last will and testament of the said Louise S. Hopkins, deceased, and I do hereby consent that the witnesses to the same be immediately examined with a view to the probate thereof.
    “PETER H. HOPKINS.”'
    
      Whereupon the subscribing witnesses to the will were sworn and examined, and a decree was entered admitting the will to probate. The sole executor named in the will, Henry H. Lane, qualified and entered upon the discharge of his duties.
    On the hearing in this matter the petitioner filed a consent that Mrs. Coffin be examined, on the reproving of the will, as a subscribing witness, “without forfeiture or relinquishment” of the gift or bequest to her, the value of which has been appraised at $2.50.
    He, however, objected that the surrogate was disqualified from acting in the matter of the original probate, first, because his wife was a legatee, and, second, because he was senior warden of St. Peter’s church.
    
      Peter H. Hopkins, in person; C. H. Frost, for the ex’r; William M. Barton, for def’ts.
   Barnard, P. J.

The wife of the surrogate was a witness to the will and the will gave a legacy to a church of which the surrogate himself was a vestryman, and these reasons are assigned to revoke the probate. The present petitioner consented to the probate of the will without citations and immediately with a view to probate thereof. The value of the gift to the witness to the will is very trifling, and the petitioner consents that upon reprobate she may be examined without relinquishment of the legacy. No reprobate is proper for the reason assigned. The witness was sworn and she cannot take the candlesticks. She must be a witness, as the will cannot be proved without her testimony, and the legacy is void “so far only as concerns such witness.” Code, 241. The surrogate himself had no interest in the will. He was a warden in a church to which a bequest was made. No objection, was made to his sitting as probate judge on that account, which seems to be necessary under section 2497 of the Code, but he had no interest in the church fund. He was one of several who managed the temporalities of a church and had in its property no title whatever, and was not disqualified. Matter of Ryers. 72 N. Y., 1.

The order of the surrogate should, therefore, be affirmed, with costs.

Pratt qnd Dykman, JJ , concur.  