#### Matter of the Estate of Napoleon B. Wickwire, Deceased.

(Surrogate’s Court, Erie County,

March, 1913.)

Wills — citation for probate — subscribing witnesses — legacy — application to set aside probate — Code Civ. Pro. § 2481(6).

Where upon the return of a citation for probate regularly issued the only heir and next of kin, testator’s infant grandchild, appeared by her general guardian and, after the appointment of a special guardian and an adjournment, the testimony of" the subscribing witnesses and also that of one of the executors named had been taken, and on an application made under section 2481(G) of the Code of Civil Procedure to open and set aside the decree of probate on the sole ground that the *138testimony of the executor was incompetent as he was a legatee, there is no evidence that the infant was wronged, but, on the contrary, that the decree for probate was entered after an agreement had been made whereby the infant’s legacy was materially increased, and an accounting was had that was regularly passed upon, and the infant, on coming of age, and in court and under the supervision of her special guardian who had recommended that the will be admitted to probate, executed a release and received her legacy as agreed upon, the petition to set aside the decree will be denied, though it appears that neither *of*the subscribing witnesses was examined as to the mental capacity of testator and that the defect in proof was supplied by the executor who testified without objection.

Application to open and set aside decree of probate under section 2481, subdivision 6, of Code of Civil Procedure.

Nelson T. Barrett (Clark H. Timmerman, of counsel), for petitioner.

William G. Kilhoffer (Charles A. Hahl, of counsel), for executors.

Hart, S.

The decree of probate in the above entitled proceeding was entered in this office September 26, 1900. The petition for probate set forth the only heir and next of kin to be Grace Yon Cleaf, grandchild, an infant. Upon the return of the citation in August, the infant appeared by her general guardian, and a special guardian was also appointed to represent the infant. The proceeding was adjourned and the testimony of the subscribing witnesses was taken in open court, as was also the testimony of Irving D. Eckerson, who was named one of the executors in the will.

The present application for the opening of the decree is based on the admission of evidence of the witness Eckerson, alleging it to be incompetent because of his interest as a legatee. There is no evidence be*139fore me indicating that the former infant has "been wronged in any manner, or that her rights were not carefully protected; petitioner having rested on the pleadings and submission of the record.

The citation for probate was regularly issued"; the infant not only appeared by general guardian, but had the advice and counsel of a special guardian. The decree of probate was signed by my predecessor in office after negotiation and investigation had been made, and an agreement was entered into whereby the infant’s legacy was materially increased. Intermediate orders to show cause were had before this court, the infant always appearing by her general guardian, and whenever her rights were involved Judge Washburn appeared for her and was appointed special guardian. He filed with the court at the time of the entry of the decree of probate a verified report setting forth the result of his investigation and negotiations and also his recommendation that the will should be admitted to probate. An accounting was subsequently had, all of which, from an examination of the papers on file, appear to have been regularly passed upon. The infant shortly after attaining her majority appeared in court, and under the supervision of Judge Washburn signed and acknowledged her release and received the legacy with accumulations as agreed upon previous to the entry of the decree probating the will.

I have examined the cases cited by counsel, and have read over the entire record in this estate. I find that neither of the subscribing witnesses was examined as to the mental capacity of testator, and that the witness Eckerson, without objection, supplied the defect. Why this was done there is nothing in the record to indicate. It has been established that the interest an executor might have in an estate, so far as commissions are *140concerned, would not disqualify Mm as a witness — the bequest to the witness is a legacy in lieu of commissions; but, without regard to tMs technicality, all parties in interest were in court on the original citation; the special guardian is a man sMlled in law and practice appertaining to probate practice, and, so far as I can ascertain, labored diligently in behalf of his ward. I, therefore, can see no reason why the decree should be disturbed. Petitioner’s application is, therefore, denied, without costs to either party.

Application denied, without costs.