
    (26 Misc. Rep. 179.)
    In re OWEN.
    (Surrogate's Court, Kings County.
    January, 1899.)
    Wills—Right op Legatee Who is a Subscribing Witness.
    A legacy to a subscribing witness to a will is not void, though his testimony is received in the probate proceeding, if the will was provable without such testimony.
    Accounting of George B. Owen, as executor of David F. Beck, deceased, before a referee. Referee’s report confirmed.
    George C. Comstock, for executor.
    Charles M. Camp, special guardian.
    Robert M. Stewart, for Martin L. Kay and others.
   ABBOTT, S.

In the proceeding to probate this will I held that the testimony of the two subscribing witnesses, Slandorff and Parrish, was sufficient to warrant probate being granted in every respect except as to the identity of the testator, and opportunity was afforded the proponents to introduce further testimony upon that point alone. Such testimony was afterwards satisfactorily supplied, and I then permitted Mr. Owen’s testimony to be stricken from the record, as he was a beneficiary under the will, and by testifying was presumed to have forfeited his legacy. The appellate division (In re Beck’s Will, 6 App. Div. 211, 39 N. Y. Supp. 810) affirmed my conclusion in all respects except as to the striking from the record of Mr. Owen’s testimony, and directed that it be reinstated. The appellate division declined to pass upon the question of the forfeiture of Mr. Owen’s legacy in the probate proceeding, holding that such question must be passed upon in an accounting, or in an action brought for that purpose. The referee before whom this question has been litigated in an accounting proceeding holds that the legacy to Mr. Owen is not void; that, although he was a subscribing witness, and his testimony was received in the probate proceeding, yet the will could have been proved without his testimony, and it was unnecessary. I concur with the decision of the learned referee, and his report is in all respects confirmed. See Caw v. Robertson, 5 N. Y. 125, and Cornwell v. Wooley, 1 Abb. Dec. 441. Two subscribing witnesses having given all the testimony necessary to probate the will, except as to the identity of the testator, and that having been supplied from sources outside of Mr. Owen, his testimony is plainly superfluous and unnecessary.

Decreed accordingly.  