
    In the Matter of the Application for a Decree Revoking the Decree Admitting to Probate the Will of Louisa S. Hopkins, Deceased.
    
      (Surrogate’s Court, Westchester County,
    
    
      Filed November, 1888.)
    
    1. Pleading—Surrogate’s court—Petition when multifarious.
    Tbe petition in this matter sought, first, an order revoking the decree admitting the will to probate under Code Civ. Pro. § 2481, sub 6. Second, the rovocation of the probate order, title 3, article 2, chap. 18 of Code Civ. Pro. Held, objectionable as multifarious.
    2. Legacy void under 2 Rev. Stat., 65, § 50—Who can waive provisions of statute.
    Where a legacy is void under 2 Rev. Stat. 65, § 50, by reason of its being given to one of two subscribing witnesses to the will, without whose testimony the will cannot be proved, the petitioner for the probate of the will alone cannot waive the provisions of the statute, where the legacy would fall into the residum, in which other persons besides the petitioner are interested.
    8. Surrogate—When not disqualifed under Code Civ. Pro. § 2496.
    The will of the testator gave to the rector, church wardens and vestrymen of a certain church $500, for a stained glass window or a lectern and pulpit, “ whichever shall be more suitable.” The surrogate was one of the wardens of the church mentioned. Held, that he was not disqualified from acting, either under Code Civil Procedure, section 2496, subdivision 1, as being a devisee or legatee of any part of the estate, nor under subdivisions 1 and 3, as being named as executor, .trustee or guardian in the will.
    
      The will of Louisa S. Hopkins was admitted to probate in December, 1886, and this proceeding is to have the decree admitting the same to probate vacated. The will contained, among other provisions, the following:
    
      Fifth. I give and bequeath to th'e 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 useful), to be placed in St. Peter’s church, Peekskill, with the following inscription-: “In memory of Ezra, Susan, Harriet and Louisa S. -Hopkins. ’ ’
    
      Eighth: I give one pair of candle-sticks to Mrs. Calvin Erost and one pair to Mrs. Owen T. Coffin.
    Mrs. Owen T. Coffin was one of the two subscribing witnesses to the will, and her husband is the surrogate of Westchester county, before whom this will was probated, and was also the senior church warden of St. Peter’s church, referred to in the will. Peter H. Hopkins was the only next of kin of the deceased, and appeared in person at the time that the will was proved and signed, and caused to be filed, a writing, duly acknowledged, which was as follows:
    Surrogate’s Court,
    Westchester County.
    In the matter proving the last will and testament of Louisa S. Hopkins, deceased: I the undersigned heir and next of kin to Louisa S. Hopkins, deceased, do hereby waive the issue and service of the citation in the matter of proving the last will and testament of the said Louisa S. Hopkins, deceased, and do hereby consent that the witnesses to the same be examined with a view to the probate thereof.
    PETER H. HOPKINS.
    Upon the filing of said paper the subscribing witnesses to the will were sworn and examined and a decree was entered admitting the will to probate. Henry H. Lane, who was the sole executor named in the will, qualified. The petitioner, on the hearing herein, 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 of the pair of candle-sticks, which were valued at about $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 the senior church warden of St. Peter’s church.'
    
      
      Peter II. Hopkins, in person, for the motion; C. H Frost, for the executor, opposed.
   Coffin, S.

The petition in this matter, as to the relief sought, is dual in its character. It seeks first an order-vacating the decree admitting the will to probate, as provided by subdivision 6 of section 2181 of the Code, and, second, the revocation of the probate, as authorized by title 3, article 2, chapter 18 thereof. On the application to* vacate the decree, only the parties in the original probale proceeding need be cited, but, in the proceeding to revoke,, not only those parties, but all the legatees, etc., are required by statute to be cited. The first proceeding involves a mere-motion, the latter a trial upon the merits. The petition is,, therefore, objectionable as multifarious. I will, however, proceed to consider the motion to vacate, which is, thus-far, the only matter submitted. This I have power to-determine. Seaman v. Whitehead, 78 N. Y., 306.

The petitioner alleges in his application that, at the time-the will was proved and the decree entered admitting the-same to probate, the surrogate was disqualified from acting, and had no jurisdiction in the premises, because, first,, he was, at the time, an officer of the corporation of St.. Peter’s church, to whom a legacy was bequeathed for a certain purpose, and, second, because his wife was and is a legatee under the will of the deceased, and prays that such decree be set aside as irregular and void for want of jurisdiction. Briefs have been submitted by both counsel,, on this point only, and I am required to decide the question.

The sections of the Code bearing upon the subject are as follows:

“Section 46. A judge shall not sit as such in, or take-part in the decision of, a cause or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixths degree.” * * *
“ Section 2496. In addition to his general disqualifications-as a judicial officer, a surrogate is disqualified from acting upon an application for probate, or for letters testamentary, or letters of administration, in each of the following cases:
“First. Where he is, or claims to be, an heir or one of' the next of kin to the decedent, or a devisee or legatee of' any part of the estate.
Second. Where he is a subscribing witness, or is necessarily examined or to be examined as a witness, to any-written or nuncupative will.
Third. Where he is named as executor, trustee, or guardian, in any will, or deed of appointment involved in the matter.
“Section 2497. An objection to the power of a surrogate to act, based upon a disqualification, established by special provision of law, other than one of those enumerated in the last section, is waived by an adult party to a special proceeding before him, unless it is taken at or before the joinder of issue by that party; or, where an issue in writing is not formed, at or before the submission of the matter or question to the surrogate.”

If, therefore, the surrogate was disqualified from acting, by reason of any provisions of law other than those contained in section 2496, it was incumbent upon the petitioner, if he wished to avail himself thereof, to have interposed the appropriate objections before the matter was submitted on the depositions of the witnesses. So far from doing this, he filed a consent in writing that the subscribing witnesses should be immediately examined with a view to the probate of the will. He raised no objection of any description. So far as the question of affinity is concerned, if not waived, it could not have been sustained, for the reason that the wife of the surrogate was not a party to that proceeding. The only parties were the proponent, named as executor, and this petitioner.

And besides this, 2 R. S., 65, § 50, renders the legacy void by reason of her having been one of two subscribing witnesses to the will, without whose testimony it could not have been proven. She was a resident of the state, competent to testify, as those proceedings show, and was neither an heir-at-law nor next of kin of decedent, nor otherwise entitled to any share of her estate, had she died intestate. Thus, that witness, being by law deprived of the legacy, ceased to have any interest in the matter, and it stood in the same position as if she had not been named as a legatee. But the petitioner, probably seeing the difficulty, sought to obviate it by filing, in this matter, a stipulation that she be examined on re-proving the will without forfeiting her legacy. This it is not competent for him alone to do. If the legacy to her fail, as it does under the statute, and the will be undisturbed, it will fall into the residuum, in which several persons besides the petitioner are interested. It is sufficient, however, to say that the decree cannot be revoked on that ground, as the objection, if it had been raised, was without force.

The only remaining question is, was the surrogate disqualified by reason of the provisions of subdivisions 1 and 5 of section 2496? Undoubtedly, persons and classes of persons, and corporations, may be legatees. Is the surrogate, or does he claim to be, a legatee of any part of the estate % He certainly makes no claim to that effect, nor is any legacy bequeathed to him by the will. A legacy is given to a religious corporation, of which he is an officer, for certain purposes. He is not named or described as legatee, but the corporation is. It is not given to both. If any special pravision of law anywhere forbids his sitting in such a case, on the ground that he is interested as an officer of the corporation, the petitioner waived it by failing to-raise the objection. But the surrogate has nothing to gain or lose by this provision for the church, which has now its complement of windows, and its lectern and pulpit. Sentiment might be gratified by the bequest, but no pecuniary interest is affected. Nor is he “named” as executor, trustee, etc., in any manner. It is true, the corporate body may act as trustee in applying the amount of the legacy in the manner indicated, but the surrogate is not “named” or called by name, in the will as executor or trustee. The statute objects to his acting only where his name is inserted as such executor, etc. -If any other valid objection under any special provision might have been raised it has also been waived.

The facts alleged are insufficient to warrant the making of the certificate as provided by section 2487 of the Code.

For the reason assigned, the motion is denied.  