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METROPOLITAN TRUST CO. V. ROGERS.

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son cited "is the owner of the property " in question, is sufficient without showing how he became such; but where he claims to be "entitled to the possession thereof, by virtue of a lien thereon or special property therein," he must allege the facts necessary to sustain the claim. Decedent's executor having instituted proceedings under Code Civ. Pro, 2706, to compel one R. to make discovery concerning certain property of the estate alleged to b in his possession, consisting of the capital stock of the A. company, and the stock and bonds of other corporations, respondent interposed an answer, to the effect that he was entitled to the possession thereof by virtue of a lien thereon and special property therein as receiver, appointed by the Supreme Court, of the property of the A. company, or in which it had any beneficial interest.Held, that this, though conclusive as to the stock of the A. company, was insufficient as to the other stock and the bonds; but that, the nature of respondent's property in the latter being indicated on the argument, he should be allowed to file an amended answer, embodying the necessary allegations in respect thereto.

THIS was an application made by the Metropolitan Trust Company of New York, as executor, to compel Nelson G. Rogers to make discovery concerning certain property of the estate of the decedent, alleged to be in his hands. Upon the return of the citation and order granted on such application, Rogers presented and filed a verified answer, in which he stated that he was entitled to the possession of said property, by virtue of a lien thereon and special property therein as receiver, duly appointed by the Supreme Court, of the property and effects of the Adriatic Fire Insurance Company, or in which it had any beneficial interest.

THOS. G. HILLHOUSE and O. C. BUELL, for petitioner.

FOSTER & THOMSON, opposed.

THE SURROGATE.-This proceeding is instituted under 2706 of the Code for the discovery, etc., of property claimed, by the petitioner, to belong to decedent's estate, of the alleged value of $150,000, consisting of the entire

METROPOLITAN TRUST CO. V. ROGERS.

capital stock of the Adriatic Fire Insurance Company, and the stocks and bonds of ten other companies and municipalities. The counsel for Mr. Rogers files a written answer, duly verified by him, under the last clause of section 2710, being the amendment added in 1881, and asks a dismissal of the proceeding. That amendment provides that, where such an answer shall be interposed, to the effect that the person cited is the owner of the property, or entitled to the possession thereof by vitue of any lien thereon or special property therein, the proceedings shall be dismissed. Hence, if the person so cited shall answer that he is the absolute owner of the property, he will not be required to show how he became such. It is the statement of a fact which ends the inquiry; but where he alleges, as in this case, that he is entitled to the possession by virtue of a lien upon, or special property in, it, his answer should state the facts necessary to sustain the allegation. It was attempted to so state them in this instance, the answer alleging that he holds it as receiver of the Adriatic Fire Insurance Company. This, I think, is not sufficient, as to any of the property other than the capital stock of such company, as to which, alone, it is conclusive. As to the other stocks and the bonds, he might as well claim that he holds them as the assignee of John Jones, and ask that, therefore, the proceedings be dismissed. As it was, however, alleged orally, and seemed to be conceded on the argument, that these other stocks and bonds, in which the decedent had some personal interest, were held, in some way, by the Adriatic Fire Insurance Company, of which the deceased had been duly appointed receiver in his lifetime, by the Supreme Court, and who, after his

WHELPLEY V. LODER.

death, was succeeded as such, by Mr. Rogers, I shall, before taking any further action, permit him to file an amended affidavit embodying these allegations, about which there seems to be no controversy, and then, if that be done, make an order dismissing the proceedings. Otherwise, the examination of Mr. Rogers as to these other stocks and the bonds will be proceeded with. Ordered accordingly.

WESTCHESTER COUNTY.-HON. OWEN T. COFFIN, SURROGATE.-June, 1883.

WHELPLEY V. LODER.

In the matter of the probate of the last will and testament of EVA J. BANKS, deceased.

The fact that one is named as executor, in an instrument propounded by another as the will of a decedent, does not render him a party to the proceedings; and he is, therefore, not disqualified, as a party, by Code Civ. Pro., § 829, from testifying as to transactions or communications between himself and the latter.

Even where one so named as executor is the proponent of the alleged will, he is, in his capacity of executor, a party without interest, and, there fore, not included in the prohibition of that section, because it is impossible that he should be examined “in his own behalf or interest;" besides, contestants, against whom he would testify, are not persons deriving their "title or interest from, through or under" the deceased, by assignment or otherwise.

A release, by a legatee, to the executor, of his interest as such, removes all objections to his competency, on the ground of interest, as a witness in proceedings for probate of the will.

The attorney of a decedent, called, in proceedings for the probate of the latter's will, by the executor proponent, to prove the instructions received by witness for drawing the same, may testify with respect

WHELPLEY V. LODER.

thereto, notwithstanding the prohibition of Code Civ. Pro., § 835, as to disclosing communications made by his client in the course of his professional employment, because by calling him the objection is waived by the personal representative, to whom alone the privilege of objecting survives.

Such testimony is, moreover, admissible on a broader ground, namely, that the statute is designed to protect the living in their business relations, and not to conceal the intentions of decedents, in respect to the disposition of their estates.

For a like reason, Code Civ. Pro., § 834, cannot be regarded as forbidding a physician to disclose, in proceedings to prove his patient's will, information acquired in professional attendance, upon an issue as to testamentary capacity.

The value of the testimony of attending physicians, as to their patients' testamentary capacity, and that of alienists, upon the same subject, given in response to hypothetical questions,―compared.

Decedent was 82 years old, and somewhat shaken in mind and body by her advanced age, at the time of the making of her alleged will, which was drawn by her attorney, and named him as an executor and a legatee. The execution was formally proved, without evidence of any conversation or conduct, attending it, furnishing any clue to her mental capacity.

Held, that this at once suggested suspicion and the necessity of a careful scrutiny into the facts.

In order to justify the rejection of a will of a person of sound mind, on the ground of undue influence, contestant must show facts inconsistent with the hypothesis of the execution having been procured by any other

means.

There is no rule of law prohibiting the draftsman of a will from taking a legacy thereunder.

We are all experts in handwriting, differing only in degree of skill. Under Code Civ. Pro., § 2558, subd. 3, permitting the Surrogate to award costs to an unsuccessful contestant of a will, where he is named as an executor in a paper propounded by him in good faith as the last will of the decedent," such a contestant, so propounding, cannot have costs where he is an attorney and acts as his own counsel. Allen v. Pub. Administrator, 1 Bradf., 221-approved.

THE testatrix died in Westchester County, in 1882, in the eighty-sixth year of her age, leaving an alleged will, dated May 15th, 1877. She was the widow of William Banks, who died several years before her. She had had one child, a son, who died in 1877, leaving no children.

VOL. I.-24

WHELPLEY V. LODER.

At the time of the making of the will of 1877, the only heirs-at-law and next of kin of the decedent were Louisa M. Hoyt her sister, and Louisa M. Craft and William M. Whelpley, children of Daniel Whelpley a deceased brother. She had, in 1874, executed a will, by which she bequeathed to her son the use of certain bank stock which, at his death, was to be sold, and the proceeds divided among various legatees. The legacies amounted to $12,200, of which $5,000 was given to Benjamin G. Hitchings, and $2,100 to Henry D. Loder, who were the executors; $3,100 to the members of the Loder family; $600 to persons by the name of Babbitt, $400 to Williamı B. Finch and wife, $700 to Seraphine Vredenburgh, and $200 to Ann Marshall and Phebe Pierce jointly, all strangers to her blood. The residue was given, in three equal parts, to Sarah A. Loder, Henriette L. Bicker and the daughter of Daniel Whelpley.

The provisions of the will of 1877 were as follows: She gave $1,000 to Mr. Hitchings, $1,000 to Henry D. Loder (having given him $1,000 in cash, since the will of 1874), $3,200 to other members of the Loder family, $2,000 to Wm. B. Finch, $1,300 to the Babbitt family, $200 to Hattie Valentine, $700 to Seraphine Vredenburgh, $200 to Ann Marshall and Phebe Pierce jointly, $800 to Henriette L. Bicker, and $200 to Sarah E. Mosher-in all, $10,600, and the residue to Sarah A. and Charlotte A. Loder, wife and daughter of Cyrus W. Loder. She declared that she had already given her sister, Louisa M. Hoyt, $6,000, and therefore gave her nothing by the will.

She had also made a will in 1865, by which she gave a legacy of $5,000 to Mr. Hitchings, and of which he was named an executor. He was an attorney, and had been

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