Hopkins v. Lane

The wife of the surrogate was a witness to the will and the will gave a legacy to a church of which the surrogate himself was a vestryman, and these reasons are assigned to revoke the probate. The present petitioner consented to the probate of the will without citations and immediately with a view to probate thereof. The value of the gift to the witness to the will is very trifling, and the petitioner consents that upon reprobate she may be examined without relinquishment of the legacy. No reprobate is proper for the reason assigned. The witness was sworn and she cannot take the candlesticks. She must be a witness, as the will cannot be proved without her testimony, and the legacy is void “so far only as concerns such witness.” Code, 241. The surrogate himself had no interest in the will. He was a warden in a church to which a bequest was made. No objection, was made to his sitting as probate judge on that account, which seems to be necessary under section 2497 of the Code, but he had no interest in the church fund. He was one of several who managed the temporalities of a church and had in its property no title whatever, and was not disqualified. Matter of Ryers. 72 N. Y., 1.

The order of the surrogate should, therefore, be affirmed, with costs.

Pratt qnd Dykman, JJ , concur.