
    Matter of Proving the Last Will and Testament of Catharine Johnson, Deceased.
    
      (Surrogate’s Court, Herkimer County,
    
    
      February, 1902.)
    "Will — Legatees When Not Oot Oee by Being Subsckibing Witnesses to a Codicil.
    The fact that legatees under a will are subscribing witnesses to a codicil endorsed upon it does not preclude them from taking under the will where it alone is proved and the codicil does not benefit them and is not necessary to the proof of the will.
    Proceeding to prove a will.
    James Conkling, for petitioners^
    J. B. & J. E. Rafter, for contestant.
   DeveNboee, S.

— The petition, as presented and filed herein, alleges that the deceased made and executed a certain instrument in writing, bearing date June 22, 1897, as, and for her last will and testament, and that the same by its terms relates to both real and personal property. Probate of such instrument is asked by tbe petitioners wbo are two of tbe executors named.

No mention is made of tbe codicil. Upon tbe return of tbe citation, issued herein, tbe contestant, one of tbe next of kin, filed objections to probate, claiming that there was a codicil to said will, and that proof and probate of such will is improper unless proof is also given of tbe codicil. Tbe subscribing witnesses to tbe will gave evidence sufficient to entitle it to probate, unless tbe position of tbe contestant is well taken. The codicil is indorsed upon tbe will, and tbe subscribing witnesses to it are tbe principal beneficiaries under tbe will. Hence it is claimed that tbe legacy to tbe witnesses wbo subscribed tbe codicil is void.

Tbe statute provides, that If any person shall be a subscribing witness to tbe execution of any will, wherein any beneficial devise, legacy * * * shall be made to such witness, and such will cannot be proved without the testimony of such witness, tbe said devise or legacy * * * shall be void, so far only as concerns such witness, or any claiming under him ” (2 E. S. m. p. 65, section 50).

Tbe petition filed makes no mention of tbe codicil, and tbe proponents offered simply tbe evidence of tbe subscribing witnesses to tbe will, and then asks its admission to probate.

I think tbe will is entitled to probate without tbe codicil being proven, or established; it is not necessarily a part of the proponents’ case; it wias not necessary for tbe proponents in order to prove tbe will, or ask for its probate to introduce proof as to tbe codicil.

I. am of tbe opinion, however; that a beneficiary does not lose bis rights under a will, in consequence of bis being an attesting witness to a codicil, ratifying and confirming tbe will,, or by reason of bis giving evidence as such. I have not been able to find any decision in point in this State; yet there is English authority on tbe subject which sustains my view. Denne v. Wood, 4 L. J. Ch. 57; Tempest v. Tempest, 2 Kay & J. 635.

It has been said tbat the bequest of a legacy is not void because the legatee attests a codicil wbicb gives bim nothing; neither does a residuary legatee of a share of the residue lose his title by attesting a codicil. Gurney v. Gurney, 3 Drewry, 208; Marcus v. Marcus, 57 Law Times, 399.

In the case at bar no provision is made for the subscribing witnesses in the codicil; if the said witnesses had attested the will, and were necessarily sworn upon a hearing for its probate, undoubtedly the bequest or devise to them would be void; but this will could be and was proved without the evidence of either of said beneficiaries, and the legacy to them is valid, and the will entitled to probate.

They were not witnesses to the execution of the will within the scope and meaning of the statute above referred to; neither was their evidence necessary to establish the will. Had they been sworn they would have testified to the signing and attesting of the codicil, not to the execution of the will. They attested only the instrument to which they put their names.

The legacy to a subscribing witness to a will is not void where the will can be proven without the testimony of the witness, as where such witness is a nonresident of the State, and the testimony of the other subscribing witness can be obtained. Cornwell v. Wooley, 4 Abb. Pr. (N. S.) 40; Caw v. Robertson, 5 N. Y. 125.

This will has been proven by the unchallenged evidence of the two subscribing witnesses. The codicil, indorsed thereon, subscribed by the two principal beneficiaries named in the will, has not been offered for probate, excepting as urged by the objections.

I have come to the conclusion herein that in order to obtain probate of this will it is not necessary for the proponents to offer and establish the codicil; and, again, if it were necessary, and bad tbe subscribing witnesses to tbe codicil been sworn as such, it would not bave¡ rendered tbe provision for tbeir benefit in tbe will void.

Tbe will may be admitted to probate, and a decree is allowed accordingly.

Probate decreed.  