
    PRUYN against BRINKERHOFF.
    
      Supreme Court, Third District; General Term,
    
    
      September, 1867.
    Executors and Administrators.—Witness to Will.—Appeal prom Surrogate.
    A gift, in a will, to an executor, of a sum of money as a compensation for services, in addition to commissions, or the appointment of the executor as legatee in trust or trustee of real estate for the purposes of the will, is not a beneficial provision which is forfeited by his acting as a witness, and testifying to prove the will, under 2 Rev. Stat., 55, § 50.
    Whether that statute provision is repealed by the Code .of Procedure ?— Query.
    
    Motion to dismiss an appeal from the surrogate.
    This was a motion to dismiss the appeal of Robert H. Pruyn, as executor and legatee, taken in due form on the thirteenth day of June, 1866, from a portion of the decree of the surrogate of Albany county, admitting the will of Blandina Dudley, deceased, to probate, by which counsel fees were awarded to counsel appearing in support of, and in opposition to, the will.
    • The appellant became executor by virtue of a codicil. He was a subscribing witness to the will, and was examined as such while in Japan by virtue of a commission, and testified without having any knowledge of the existence of the codicil.
    By the m ill he was appointed a trustee of the real estate, to make partition, and for various special purposes. He was also a legatee in trust, and the sum of one thousand dollars was bequeathed to him as a compensation for his services as executor, above his commissions.
    The respondents were duly served with a petition of appeal on the twenty-second day of June, 1867, and were now in default for not answering, an order having been entered on the proper affidavit that the appeal be heard ex-parte, under Rule 44.
    
      J. Forsyth and H. Smith, for the respondents.
    
      J. F. Seymour and A. Lansing, for the "appellants.
   By the Court.—Miller, J.

There may, perhaps, be some question whether the respondents have not waived a right to object to. the executor’s ability to appeal, by their default in not answering, and in allowing an order to be entered that the appeal be heard ex-parte. But passing by the question of waiver, I think the motion to dismiss the appeal to the supreme court from the surrogate’s decree must be denied.

By the statute (2 Rev. Stat., 66, § 55), the right of appeal is given to any devisee or legatee in the will of the testator. The appellant is, I think, both a devisee¡ and a legatee in trust under the will, and unless the devisees and bequests to him. are forfeited by the provisions of 2 Rev. Stat., 65, § 50, he has a clear right of appeal. The statute last cited, does not, I think, deprive the appellant of such right, and he is not such a devisee or legatee as is deprived of that privilege. .The term “beneficial”'in thqt section has been held not to apply to all kinds of devises and bequests, and. none but such as are comprehended within this class are avoided (McDonough v. Loughlin, 20 Barb., 244, 245).. The devise of one thousand dollars was bestoed as a compensation for services to be rendered as an executor ; and it stands in the same position, and partakes of •the same character, as the commissions of an executor. It was not an absolute gift, and not such a devise or legacy as becomes forfeited under the statute. Nor are the devises in trust forfeited within the provisions of the .statute in question. j

This principle is expressly held in the case cited, .■and I think it is decisive upon the question now submitted to our consideration.

It is urged that the statute is superseded and amended Vby section 399 of the Code, and that this should be construed in connection with 2 Rev. Stat., 65, § 50. There •is, perhaps, some force in the suggestion ; but as there .are other grounds upon which this motion should be denied, it is not essential to enter upon a discussion of .the question how far this provision of the Code, designed, .as it was, to change the old common law rule which precluded all persons who were interested from testifying •as witnesses, modifies or affects the statute.

The motion to dismiss the appeal must be denied with ten dollars costs.

Hogeboom and Ingalls, JJ., concurred.

Motion denied, with costs. 
      
       Present, Miller, Ingalls, and Hogeboom, JJ.
     