McDonough v. Loughlin

By the Court, S. B. Strong, J. The statute would have made the respondent Cassidy a competent witness to prove the execution of the will, even if he would have otherwise been excluded by the rules of the common law. (2 R. S. 65, § 50.) The only objection, of any weight, to his admissibility was that he was the applicant to establish the will, and therefore responsible for the costs, in the event of a failure. That objection not having been raised before the surrogate, it must be deemed to have been waived, and can be of no avail on an [244] appeal. (Leach v. Kelsey, 7 Barb. 466. 1 Cowen & Hill’s Notes, 256, 266.) I can see no valid objection to the manner in which the witnesses 'to the execution of the will subscribed their names. The legislature undoubtedly intended that the certificate of attestation should intervene between the body of the will and the names signed by the witnesses. The memorandum of the erasures and interlineations is merely a part of the certificate. Taken together, it states that the paper as altered, was executed by the testator and attested by the witnesses. That, so far as I know, is, and was before the adoption of the revised statutes, the usual practice where there are alterations to the will as at first drawn, and it seems to me is free from objection, and very proper. The alterations in the will in question are quite numerous, and the memorandum is consequently a long one, but that, in the absence of any charge of fraud, can make no difference. The appellant is mistaken in point of fact in his allegation that there is no evidence to show that the decedent requested Cassidy and McCue to witness the will. Cassidy testified that the testator said to him, “ Mr. McCue will want you to be a witness to the will.”. And McCue swore that “he read the attestation clause to the testator, and asked him whether he wished us (Cassidy and McCue being the only persons then in attendance) to be witnesses to the will, and he said that he did.” It surely is not necessary that a testator should himself formally repeat the words. It is enough if he directly and audibly adopts the language of another, used in his presence and hearing.' To hold otherwise would be to sacrifice substance to mere unmeaning formality. I am strongly inclined to think that the admission and examination of Cassidy, as a witness to prove the will, did not annul his appointment of executor, or the legacies to him as a trustee. The statute avoids any beneficial devise, legacy, interest or appointment, to witnesses, (2 R. S. 65, § 50,) but the use of the word “ beneficial,” if it has any signification, indicates that there may be devises, legacies,' interests and appointments [245] to an executor or trustee, which may be sustained, notwithstanding his examination in support of the will. The only question in this case is whether the legacies or appointment are beneficial to Cassidy. Clearly nothing is given to him, nor is any appointment conferred upon him, for his own personal use. All is fiduciary, and for the benefit of others. He will be, it is true, entitled to the commissions allowed by the statute. But that is by way of compensation for his services, and is not a gift under the will. Payment for services (and in most cases of this kind the compensation) is never considered as a gratuity. It is undoubtedly beneficial to have an employment, for a reasonable compensation, but the benefit is not of a character to disqualify a witness, and it is to such only that the statute refers. The revised statutes declare that devises in trust are not necessarily beneficial. They provide (1 R. S. 732, §76) that powers are beneficial or in trust, and (in § 79) that a general or special power is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution. These provisions are certainly antagonistical to the idea that because the donee of a mere naked power may be entitled to a compensation for his services he is therefore beneficially interested. It has been held in South Carolina, (Taylor v. Taylor, 1 Richardson, 531, and Tucker v. Tucker, 5 Iredell’s Law Rep. 161,) that the office of executor is an appointment yielding emolument, and that therefore one named as an executor in a will is an incompetent witness to establish it. And the same principle was adopted in the case of a trustee entitled to compensation, in North Carolina. (Allisons Ex’rs v. Allison, 4 Hawks’ Rep. 141.) The same rule has been adopted by this court at a general term in the third district, (Burritt v. Silliman, 16 Barb. 198,) although, as stated by Judge Harris, “ with hesitation.” But the decisions in the English courts are the other way. (1 Modern Rep. 107, before Lord Hale. Lowe v. Jolliffe, 1 W. Black. 365. Holt v. Tyrrell, 1 Barnard. Rep. K. B. 12. Bettison v. Bromley, 12 East, 250.) In the case last cited, Lord Ellenborough said that the point [246] had been decided, so long ago as Lord Hale’s time, that an executor having no interest in the surplus was a good witness to prove the will, in a cause concerning the estate; and this had been followed by other decisions to the same effect; I am inclined to follow the English decisions, as it seems to me they are supported by the better reason. It is true that in England the executor has not, generally, any compensation for his services ; but it is taking a very narrow view of the subject to suppose that the statute allowing a meager compensation for what are too often unthankful services, can confer such a benefit as to disqualify an otherwise competent witness. The tendency of modern legislation is to relax the rules of exclusion, and I yield to the spirit of the age where those rules were merely technical, or had no substantial-foundation. [Dutchess General Term, July 2, 1855. The surrogate’s decree must be affirmed. Brown, S. B. Strong and Rockwell, Justices.]