In re probate of will of Veazey

[470] The opinion of the court was delivered by Swayze, J. The ordinary affirmed the decree upon the opinion of Judge Joline. We concur in the opinion and .would add nothing were it not for the fact that two objections to the admission of the testimony of Mr. Baltz are urged in this court. The first is, that as he is an executor and one of the proponents of the'will lie is incompetent under the statute to testify as to transactions with the deceased. The second is, that as he was the attorney and counsel of the testator in the execution of the will his evidence is incompetent for that reason. The first question raised has not been decided by this court. It has been the subject of decision in three eases in the prerogative court. Mackin v. Mackin, 37 N. J. Eq. (10 Stew.) 528; Grant v. Stamler, 68 N. J. Eq. Robb.) 555; McLaughlin’s Will, 69 N. J. Eq. (3 Robb.) 479. In all of these cases the testimony is held to lie admissible. The reason was well stated by Chancellor Runyon in the case first cited. The statute applies only in the'case of civil actions. Proceedings for the probate of a will are not a civil action, but a judicial inquiry to ascertain whether the instrument before the court is the last will and testament of the deceased. We think the evidence was properly admitted so far as this objection is concerned. The other objection is equally untenable. The reasons are stated in Wigm. Ev. § 2311/.. We have nothing to add. The decree is affirmed, with costs. For ajfirmance—The Chancellor, Chief-Justice, Garrison, Swayze. Trenoiiard, Bergen, Yoorhees, Minturn, Ealiscit, Bogert, YredenburghJ Congdon, White, -Treacy —14. For reversal—None.