
    Matter of the Probate of the Last Will and testament of John Wilson, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed October 26, 1886.)
    
    
      1. Executors—Witness — Competency —Will—Probate — Legatee—
    Code Civ. Pro. § 829.
    An executor who was also named as a legatee in the will, as proponent of said will put in evidence a release, under seal, to the administrator of his interest as legatee under the will. Held, that he was a competent witness to prove personal conversations and transactions had by him with the testator at the time of the preparation of said will in relation to its contents and execution. The release extinguished his interest as legatee, which went to the residuum to be distributed under the will.
    2. Same—Commissions as executor dabs not render him incompetent.
    The witness was not rendered incompetent to testify to such transactions by reason of being a party to the proceeding or as being interested by way of commissions as an executor.
    8. Costs—Surrogates court—Who entitled to—Code Crv. Pro. § 2589.
    On an appeal from the probate of a will, the successful party only is entitled to the costs of appeal in the surrogates court under Code Civ. Pro., § 2589—Where judgment is given in favor of the executor, it is error for the court to allow costs to the unsuccessful contestants.
    Appeal from a judgment of the supreme court, general term, second department, affirming the decree of the surrogate of Orange county, admitting will to probate.
    
      Henry Bacon with Joseph Merritt, for appl’ts.; B. JR. Champion, for resp’t.
    
      
       Affirming, 38 Hun., 643, mem.
      
    
   Huger Ch. J.

One Hart was executor under the will of John Wilson, deceased, and also a legatee therein. He presented the will for probate, and offered himself as a witness to prove personal conversations and transactions had by him with the testator, at the'time of its preparation, in relation to its contents and execution. It was objected that he was incompetent, under section 829 of the Code of Civil Procedure, to testify to such transactions and conversations, both as a party to the proceeding, and also by reason of his interest in the event. The proponent therefore put in evidence a release to the administrator of his interest as legatee under the will. The objection was thereupon overruled by the surrogate, and this is now alleged as error.

We think the questions presented have been settled by authority against the contention of the appellant. The interest which the witness might have taken as legatee under the will was effectually discharged by the release. It was an instrument under seal, importing a consideration, and its effect was to swell the residuum of the estate and increase the amount to be distributed under the provisions of the will. The residuary legatee took nothing thereby in the right of the legatee, and did in no sense succeed to the sum derived from, through, or under any right of the legatee.

Neither was the witness incompetent by reason of being a party to the proceeding, or as being interested by way of commissions as executor. It was held in the case of Children’s Aid Society v. Loveridge (70 N. Y., 387) that an executor was not such a party to the proceedings to prove a will as would preclude him from testifying to personal transactions with the deceased testator, within the spirit and meaning of section 829, Code of Civil Procedure.

Neither did his right to compensation as executor render him incompetent, by reason of interest, to testify to such transactions. This ruling was approved and followed in Rugg v. Rugg, 83 N. Y., 592. The same question was decided in. a similar manner in Reeve r. Crosby, 3 Redf., 74. In McDonough v. Loughlin (20 Barb., 238), the proposed witness was an executor and trustee under the will, as well as a subscribing witness. The question was whether the execution of the will could be proved by him without working a forfeiture of his appointment as executor and the devise to him as trustee, under 2 Rev. St., 65, § 50, avoiding any beneficial devise, legacy, interest, or appointment to subscribing witnesses. It was held that it could, inasmuch as the devise to him was in trust, he taking no beneficial interest therein, and his appointment as executor was fiduciary, and not for his own benefit. It was said that the commissions were given by statute as compensation for services, and did not accrue to the executor as a gratuity by force of the will. The claim and appointment were not beneficial within the meaning of the statute. It is said in the same case that the doctrine of the English courts is to the same effect; citing 1 Mod., 107; Lowe v. Jolliffe, 1W. BL, 365; Tyrrell r. Holt, 1 Barn., 12; Bettison v. Bromley, 12 East., 250. We find no cases in this state conflicting with the principles laid down in those referred to. In Lane r. Lane, 95 N. Y., 494, the proposed witness was not only an executrix, but also a legatee; and it was properly held, she not having released her claim as legatee, that she was an interested party.

There are no other objections made by the contestants appearing in the record which are open to consideration in this court. The executor, however, has appealed from so much of the judgment rendered by the general term as awards costs to the unsuccessful contestant. We are of the opinion that, under section 2589, this appeal must prevail. That section lays down as an express rule by which costs of appeal in that court must be regulated, and it authorizes costs to a successful party only. This was distinctly adjudged by this court In re Budlong (100 N. Y., 203), and accords with sound policy. Sections 3230 and 3240 refer only to such cases as are not otherwise provided for in the Code.

The judgment of the general term is affirmed as to the probate of the will, and reversed as to the award of costs to the contestants, with costs to the executor to be paid out of the estate.

All concur.  