#### *In re*Lasak’s Estate.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

1. Wills—Probate and Contest.

Where the subscribing witnesses to a will and several codicils thereto all testify to the formal execution of the several papers, that testator’s mind was clear and calm, and that he was under no restraint, and subject to no apparent importunity or influence, and their testimony covers a considerable portion of testator’s latter years, such papers should be admitted to probate.

3. Same—Undue Influence.

An inference of undue influence will not be drawn from the inequality of a will, especially when there is complete proof of testator’s capacity.

8. Same—Evidence.

In a will contest a daughter of testator, whose interest was adverse to the will, testified without objection that her father had said to her that the executor had helped him make his will, and that he was glad his son, who had disgraced his-name, was dead. Before her examination was closed this evidence was stricken out on motion of an attorney supporting the application for probate. *Held*that, assuming that testimony received without objection should not have been stricken out, there was no sufiicient error to call for a reversal, the evidence not tending to show either incapacity or undue influence.

4. Same—Probate—Power of Executors.

An executor who has propounded his testator’s will for probate has no active duty to perform, and cannot discontinue the proceeding.

Appeal from surrogate’s court, Westchester county.

Proceedings for the probate of the will of Francis W. Lasak. . From a decree admitting the will to probate, Cordelia D. Chauvet, Antoinette L. Schermerhorn, and Margaret S. Ives appeal. For former litigation, see 7 ÍT. Y. Supp. 2; 8 N. Y. Supp. 740, 775.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*Aaron Kahn, Robert Sewell,*and *Charles V. Maclean,*for appellants. *Hoadly, Lauterbach*<£ *Johnson,*and *G. G. & F. M. Reynolds,*for respondents.

Barnard, P. J.

The competency of the testator was clearly proven. The testator died in February, 1889, and he left a testamentary disposition of his property evidenced by a will and seven codicils. Ttfe will was executed 11th February, 1883, and the last codicil on the 14th April, 1884. The will and the first five codicils are witnessed by the same persons, William G. Lathrope and S. R. Johnson. The two last codicils are witnessed by Horace S. Ely and John A. Ely. All these witnesses were called, and all testify clearly and particularly to the formal execution of the several papers; that the testator’s mind was clear and calm; and that he was under no restraint, and subject to no apparent importunity or influence. The witnesses were intelligent business men, and their testimony covered a considerable portion of the testator’s latter years. The surrogate was called upon under this evidence to decree probate of the several papers propounded.

There was no error committed upon the trial. John G. Wondets was named as executor in the will. He made a petition for probate, and upon it citations were issued to all parties interested in the estate. Answers were put *845in, and the executor employed an attorney who called and examined the several witnesses to the will. He then moved the court to permit him to withdraw and subsequently to dismiss the proceedings. This motion was properly denied, so far as á dismissal was asked for of the probate proceedings. The executor need not apply for probate, and need not be cited to either support or oppose probate. If he does apply for probate he has no active duty to perform, but may remain silent until the surrogate causes the witnesses to the will to be examined, and an order made as to probate. It would be a strained construction- of the law as to probate of wills if the court should be compelled to hold that after a will was presented for probate, and presumptively proven by the executor, he could discontinue the whole proceedings. He was not a party to the record with any such power. The executor could not suppress a will before it be offered for probate or afterwards.

Mrs. Chauvet, who was a daughter of deceased, was sworn as a witness upon the trial. Her interest was adverse to the will, but she had made no answer. On the 31st May, 1889, she appeared to have been permitted to testify to certain communications with her father without objection. On the 20th June, 1889, and before her examination was closed, on motion of an attorney who was supporting the application for probate, this evidence was stricken out. Assuming that testimony received without objection belongs to the case, and may not be stricken out, no sufficient error was committed to call for a reversal of the judgment. The evidence is returned, and there is nothing in it which tends either to show incapacity or undue influence. The testator had said to her that the executor had helped him make his will, and that he was glad his son, who had disgraced his name, was dead. The ruling that such personal communications as were offered be excluded, was correct. *Wadsworth*v. *Heermans,*85 N. Y. 639; *Holcomb*v. *Holcomb,*95 N. Y. 316.

The inference of undue influence to be drawn from the inequality of the will has been so repeatedly rejected by the court of appeals as insufficient for that purpose, standing alone, that no argument can be based thereupon, standing alone, as it does, with full and complete proof of the testator’s capacity. The decision should therefore be affirmed, with costs. All concur.