#### Matter of the Last Will and Testament of Mary A. Fitzgerald, Deceased.

(Surrogate’s Court, New York County,

December, 1900.)

Will — Release of interest in order to testify to execution — Annexation of sheets of a will — Conflicting testimony as to execution.

A legatee may release his interest under a will and testify to its execution.

Where the release comes from the custody of counsel for the proponents, interested parties, delivery to them may be presumed.

Although the release increases the shares of the residuary legatees, the legatee releasing cannot be said to have been called in behalf of persons from, through or under whom he derived his interest or title by assignment or otherwise (Code C. P., § 829), as the residuary legatees take nothing in right of the legatee releasing nor do they take anything from, through or under him.

The fact that the three sheets of note paper on which the will was written were not annexed at the time of execution does not impair the validity of the will.

A will admitted to probate upon the testimony of a legatee, although the subscribing witnesses testified that the decedent did not sign in their presence nor exhibit her signature to them.

Proceedings upon probate of a will.

*326Garter, Hughes & Dwight, Thomas Cl O’Sullivan, for proponents.

Seward, Guthrie & Steele, John Delahunty, for contestants.

Thomas, S.

Thomas P. Hodnett, a legatee named in the will, but not otherwise having any interest in the estate, was called as a witness, and a release executed by him was proved and offered and received in evidence and filed without objection. On the footing of this release he was permitted to testify as to the details of the execution of the will, against the objection of the contestants and under their exception. The ruling admitting this evidence is now asked to be reconsidered, and I have examined the contentions of the contestants with respect to it, only to be confirmed in my opinion of the correctness of my decision made at the trial. The facts in this case with relation to this point cannot be distinguished from those found in Matter of Wilson, 103 N. Y. 374. In that case, as in this, the witness who was called was a legatee under the will, and the release executed by him was produced at the trial. In the opinion of the court, it is stated that the release was “ to the administrator,” but on examination of the record of the appeal I find that it was something different from this. It recites the pendency of the proceeding to prove the will and that the witness is desirous of giving certain testimony in said proceeding which, under the laws, he is precluded from giving by reason of bis interest, and proceeds as follows: “ How, therefore, for the purpose of removing any and all such disqualifications, and in consideration of the sum of $1 to me in hand paid by John 0. Schofield, the temporary administrator of the goods, chattels and credits of said John Wilson, deceased, I do hereby release, exonerate and forever discharge the estate of John Wilson, deceased, his executors and administrators, and all and every of them, of and from the payment of said legacy, so given to me in and by said instrument or will offered for probate as aforesaid; and of and from all claim and demand whatever, which I now have or may hereafter have against the estate of said deceased, or said executors or administrators, or for or by reason of said legacy; said instrument or will to stand so far as I am concerned with the same force and effect as if the fourth clause therein, giving me the sum of $300, such legacy aforesaid, had never been inserted therein.” The paper was under seal *327and acknowledged. I am unable to observe any substantial difference between this release and the one in this case. No recital of the purpose for giving the release is in the instrument, but the fact that it was intended to remove the disability of the witness was proved on his examination by counsel for the contestant. Neither is it recited that the “ $1 ” named as one of the considerations was paid by the temporary administrator, but it is under seal, and the words of release contained in it are as full and ample in the one document as in the other. No objection was made at the trial to a failure to prove the delivery of the release, and none was made in the case cited, where there was the same omission. It came from the custody of the counsel for the proponents, legatees under the will and persons affected by it, and delivery to them can be presumed. Goodrich v. Walker, 1 Johns. Cas. 253; Hulse v. Bacon, 40 App. Div. 89. It was filed with the court, thus making it available for all parties in interest. If lack of proof of actual delivery to anyone had been made a ground of objection, delivery at the time of the trial would have been a simple formality which the witness by his whole conduct and testimony showed himself willing to observe. It is argued that the release served to increase the share in the estate of the residuary legatees, and that, for this reason, the witness was being called in behalf of *“*a person from, through or under whom ” he derived his interest or title *“*by assignment or otherwise.” Code Civ. Pro., § 829. But the same objection was made in the Wilson case, and was answered by Ruger, Ch. J., as follows: *“*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 releasing legatee, and did, in no sense, succeed to the sum derived from, through or under any right of such legatee.” 103 N. Y. 375. The Wilson case was followed in Loder v. Whelpley, 111 N. Y. 239, in which the facts were almost precisely similar, and the record of the appeal in that case shows the release to have been in precisely similar form. In Matter of Berrien’s Will, 12 N. Y. Supp. 587; 35 N. Y. St. Repr. 255, the General Term of this department approved of a ruling of a surrogate admitting the testimony of a legatee called on behalf of the proponent, on a trial of a contested probate, after he had orally *328declared on the witness stand that he released and waived his legacy, without requiring the execution or delivery of any paper whatever. The cases cited by the contestant in support of his contention as to the disqualification of the witness are plainly distinguishable from the authorities above referred to. In Bennett v. Bennett, 50 App. Div. 127, and in Matter of Torkington, 79 Hun, 128, the witness in each case was an heir of the decedent, he was called on behalf of the contestant and the will affected real property. In such a case, if the conflict prevailed, title to land would pass to the witness, and a mere release or waiver would not suffice to divest such title, or to deprive the witness of his interest. What would have been required was a conveyance to some specified person, under seal and containing words of grant. In one of the cases the instrument offered was a paper not under seal, and in neither case was any grantee named. If the paper in either case had been held operative, its effect, on the refusal of probate, would have been to pass title to land, not from the decedent, but from the witness to the person in whose interest the witness was called. The decisions declaring the witness incompetent were both clearly right upon their facts. In O’Brien v. Weiler, *140*N. Y. 281, a release by one part owner of a fund claimed under a will and sued for in the action, to his co-owner, was held to amount to a transfer or assignment of his interest, and to bring the releasing party within the rule which disqualifies the person from or through whom the interested person derives his interest or title from testifying as to personal transactions or communications with the testator on whose right the claim was based. The court cited Matter of Wilson, *supra,*and Loder v. Whelpley, *supra,*declaring them not applicable, and saying: *“*They were proceedings for the probate of wills, contested for the want of testamentary capacity. The witnesses offered were legatees under the will, and they executed a general release and discharge of their legacies. They were not offered as witnesses in behalf of any party to the proceeding or person interested in its event who had succeeded to their interest as legatees, and they were, therefore, held not incompetent to testify with reference to a personal transaction or communication with the testator.” With the testimony of Mr. Hodnett remaining in the case I reach my conclusion as to the facts without the slightest difficulty. The testimony of the two subscribing witnesses who were examined, to the effect that every requirement of the execution of the paper as a wiE was carefully *329observed, except only that the decedent did not sign the instrument in their presence or exhibit her signature to them, is not in harmony with probabilities. The will is entirely in the handwriting of the decedent, who was plainly an intelligent woman and an easy- and rapid writer. It was lawfully written on three sheets of note paper, and the fact that these were not annexed at the time of execution does not impair its validity. Matter of Snell, 32 Misc. Rep. 611, and cases cited. The first sheet was initialed by the decedent at its end; she wrote her name three times on the second sheet, and again at the bottom of the page on the third sheet, after the signatures of the witnesses, all for the obvious purpose of identifying each and every sheet as a part of the will. The attestation clause begins with the words “ Signed as and for her last will and testament by the above Mary A. Fitzgerald, in our presence,” etc., and this certificate these witnesses signed. A third witness, not examined, and who makes no question as to the accuracy of this memorandum, also signed the same certificate. The entire execution was in the presence of the husband of the decedent, who was a lawyer, presumably having knowledge of the requirements of execution, who took valuable rights under the will. All of these circumstances have weight, though not, in themselves, sufficient to establish the will contrary to the evidence of the subscribing witnesses. Woolley v. Woolley, 95 N. Y. 231. The testimony of Mr. Hodnett was, however, complete and satisfactory as to every material fact of due execution, and, having seen and heard all the witnesses testify, I believe him and I refuse to believe the subscribing witnesses, and I will admit the will to probate notwithstanding their testimony. Matter of Cottrell, 95 N. Y. 329; Matter of Carey, 24 App. Div. 531, 542; Code Civ. Pro., § 2620. The objections will be overruled and the will admitted to probate. The alterations in the paper will be adjudged to have been made before execution. Costs will be adjudged against adult contestants. Costs of special guardians will be adjudged on signing decree.

Decreed accordingly.