HAUSELT V. GANO. v. Bogardus, 12 Wend., 67; Jeffs v. Wood 2 P. Wms., 129; Ranking v. Barnard, 5 Maddock, 32; Courtenay v. Williams, 3 Hare, 539; Wright v. Austin, 56 Barb., 17; Close v. Van Husen, 19 Barb., 509; Rickets v. Livingston, 2 Johns. Cas., 100; Smith v. Kearney, 2 Barb. Ch., 533; Smith v. Smith, 3 Giffard, 260; Coates v. Coates, 33 Beavan, 249). The answer, therefore, very distinctly denies the validity of the petitioner's claim, and the application must be dismissed without prejudice to any action which she may see fit to bring elsewhere. Ordered accordingly. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-July, 1882. HAUSELT V. GANO. In the matter of the estate of JOHN H. MCCUNN, deceased. Where a petitioner, under Code Civ. Pro., § 1825, for leave to issue exccution on a judgment rendered against an executor in his representative capacity, omits to allege the possession of assets applicable to the judgment, and the executor swears that there nowhere exists any property belonging to decedent's estate, the proceeding should be dismissed. Although the Code of Civil Procedure does not absolutely require a direction to account upon the filing of such an application, the allowance of an execution, before ascertaining the executor's ability to pay the judg ment from the funds of the estate, would be utterly unjustifiable.* * See Code Civ. Pro., § 1826, limiting the amount directed to be collected by the execution to the "plaintiff's just proportion of the assets," as appearing. HAUSELT V. GANO. APPLICATION by Charles Hauselt for leave to issue execution upon a judgment recovered against decedent's executors, James M. Gano and others, in their representative capacity. The facts appear sufficiently in the opinion. KAUFFMANN & SANDERS, for petitioner. THOMAS W. PITTMAN, for executors. THE SURROGATE.-The petitioner, as assignee of a judgment which has been recovered against decedent's executors, asks leave to issue execution thereon. He does not allege that the executors, or any of them, are in possession of assets applicable to such judgment. On the other hand, one of the executors swears by his answer that there nowhere exists any property whatever belonging to decedent's estate. It was decided by my predecessor, in the case of Melcher v. Fisk (4 Redf., 22), that, in view of certain restrictions of the Revised Statutes, the Surrogate ought not to direct the issue of an execution upon a judgment against executors, without informing himself, by an accounting or otherwise, that they possessed assets of the estate which could be lawfully applied to the satisfaction of such judgment. See, also, St. John v. Voorhies (19 Abb. Pr., 53). All the provisions of the Revised Statutes upon which these decisions depend have been since repealed, but others of similar import have been embodied in the Code of Civil Procedure. By one of those repealed provisions, it was made the duty of the Surrogate, upon presentation of an application such as this, to issue a citation requiring the HAUSELT V. GANO. executor "to appear and account;" and it was further declared that if, upon such accounting, it should appear that the executor held assets properly applicable to the payment of the judgment, an order should be entered for the issuance of execution (Rev. Stat., sec. 21, title 5, chap. 6, part 2; 3 Banks, 6th ed., 125). There is no similar provision in the Code which absolutely requires a direction to account upon the filing of a creditor's application, or which makes such a course essential as a means of ascertaining the possession of assets. But it is declared by section 2552 that "an order permitting a judgment creditor to issue an execution against an executor or administrator is, except upon an appeal therefrom, conclusive evidence that there are sufficient assets in his hands to satisfy the sum for which the order permits the execution to issue." And, by the sections immediately succeeding, modes of procedure are established for enforcement of decrees and for punishment of contemptuous disobedience. This is the clearest possible intimation, that, without first ascertaining the ability of an executor to pay, from the funds of his testator's estate, the judgment upon which execution is prayed for, the allowance of such an execution would be utterly unjustifiable (Matter of Clark, 2 Abb. N. C., 208). It is provided, by section 2723, that, in certain contingencies, including such a case as the present, the Surrogate "may in his discretion make an order requiring an executor to render an intermediate account." But such an order seems to be here unnecessary, in view of the fact that the petition does not aver, even upon information and belief, that any assets are in the hands of the exec SCHERRER V. KAUFMAN. utors, while the answer distinctly asserts the contrary. The proceeding must be dismissed. Ordered accordingly. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-July, 1882. SCHERRER V. KAUFMAN. In the matter of the probate of a paper propounded as the last will and testament of MICHAEL SCHERRER, deceased. The interest in the event of a special proceeding, which will, under Code Civ. Pro., § 829, disqualify a witness from testifying as therein specified, must be a present, certain and vested, as distinguished from a remote, uncertain or contingent interest. The test is that the witness will gain or lose by the direct legal operation of the decree, or that the record will be legal evidence for or against him in some other cause. The possible right of dower of the wife of a son of a deceased owner of real property, in such of the property as the son might inherit if decedent should be adjudged to have died intestate, not being an interest of the requisite character, does not disqualify her, in a special proceeding for the probate of decedent's will, from testifying against the executor, to a personal transaction or communication between herself and decedent. Authorities, upon the question of disqualification of a witness by virtue of the possession of a dower interest,-compared. MOTION to expunge, as incompetent under Code Civ. Pro., § 829, testimony given in proceedings instituted by Catharine Kaufman for the probate of decedent's will. The facts appear sufficiently in the opinion. SCHERRER V. KAUFMAN. A. W. NICOLL, for Peter Scherrer and another, contestants. H. GREAVES, for proponent. THE SURROGATE.-The decedent died possessed of both real and personal property. A paper has been offered for probate, which purports to be his will and to dispose of his entire estate. A contest has arisen as to the genuineness and validity of this instrument, in the course of which the wife of one Peter Scherrer, a son of the decedent, has been examined as a witness. She has been permitted to give in evidence certain conversations between herself and her father-in-law, under objection that the reception of such testimony was in violation of section 829 of the Code of Civil Procedure. The court has reserved until now its decision upon a motion to strike out this evidence as incompetent. The language of the section in question is as follows: "Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or person interested in the event shall not be examined as a . witness in his own behalf or interest . against the executor of a deceased person concerning a personal transaction or communication between the witness and the deceased person" To this rule of exclusion there is an exception, which is not pertinent to the present inquiry. As to the nature of Mrs. Scherrer's testimony, it suffices to say that it admitedly falls under the ban of the section above quoted. But is she, within the meaning of that section, "a person interested in the event" of this proceeding, simply because of the fact that she is the wife of an heir at law of the decedent, and as such has a right of dower in any real |