In re the Judicial Settlement of the Accounts of Rossell

The opinion on the former argument of this appeal is reported in 121 Appellate Division, 381. It was then held that the decree erroneously determined that a legacy of $2,000 bequeathed to Mrs. Rossell by her mother, Elizabeth Gamble, remained in the hands of *608John Gamble, the father and coexecutor of Mrs. Bossell under her mother’s will until the death of said John Gamble which occurred five months after the death of Mrs. Bossell and seven years after the death of their testatrix, Elizabeth Gamble.

On the application of the executors of Mrs. Bossell a referee has since been appointed under section 2586 of the Code of Civil Procedure to take further evidence as to the payment to her of said legacy and to report the same to this court, and such report having been made the matter is again before us for reargument.

In addition to the facts stated in the former opinion it now definitely appears that the $1,000 therein stated to have been deposited January 25, 1898, by'Mrs. Bossell in the Dry Dock Savings Institution was received by her from her coexecutor John Gamble, but it is now claimed to have been a gift by him to her, and that it was no part of the estate of her mother. The fact is perhaps not very material except as it makes it clear that Mrs. Bossell was in receipt of funds from her father and coexecutor. It was not necessary, however, that Mrs. Bossell should receive her legacy through her father. As executrix she had the same right as he to the receipt, control and disposition of the fund. And as to the legacy in question he had no permanent right thereto, but it was her absolute property.

The evidence taken since the former argument of the appeal cannot avail to change the result. It now appears that Mrs. Bossell made a last will and testament just as she was about to enter Boosevelt Hospital for a surgical operation which resulted in her death two days later. The 3d clause of her will is as follows: “ I give and bequeath to my three children, Spencer George, Elizabeth Godfrey and Herbert Jackson, the sum of two thousand dollars (which is to come to me from my mother on father’s death) to be divided equally between them as each arrives at the age of twenty-one years. The interest upon said sum during said period is to be expended annually for clothing and necessaries for each while each is under twenty-one years of age until the principal share is due to each.” Her husband, Isaac S. Bossell, and James Young were designated as executors and trustees to carry out the provisions of the will.

It is claimed that said bequest in the will of Mrs. Bossell refers to her legacy from her mother and indicates that she had not *609received it but that it was in the hands of her father. The language of the will does not correctly describe such legacy, and as it appears that Mrs. Eossell at the time she made this will was entitled to a portion of her mother’s undivided residuary estate still in the hands of her father, it may be argued with some force that Mrs. Eossell had in mind her portion of said residuary estate estimated by her at “ the sum of two thousand dollars.” However this may be, it is very certain that her testamentary declaration would constitute per se no evidence in her favor had she lived, and it is not evidence in favor of these respondents. (Griffin v. Train, 90 App. Div. 16, 21.)

But her husband testifies that this will was read to and by John Gamble, who expressed his satisfaction therewith. Such testimony is important if we are at liberty to give it consideration. But it is before us subject to the objection that it is within the prohibition of section 829 of the Code of Civil Procedure. We see no escape from the force of this objection. The will of Mrs. Eossell provides that the interest on the bequest is to be expended annually for “ clothing and necessaries ” for her children during their minority. The legal liability for such clothing and necessaries rests upon this witness as the father of said children. This bequest relieves him from such liability wholly or partly, and is as beneficial to him as if the use of the legacy were bequeathed directly to him during the minority of his children. It is the fact of pecuniary interest and not the extent thereof which renders a witness incompetent under said section 829. We must, therefore, disregard this testimony, and there is no other evidence which can affect our former disposition of the case.

The decree should be modified in accordance with the former opinion, and as so modified affirmed, with costs to both parties payable out of the estate of Elizabeth Gamble, deceased.

Decree modified in accordance with former opinion, and as so modified unanimously affirmed, with costs to both parties payable out of the estate of Elizabeth Gamble, deceased.