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Statute of Frauds should be those credible by the common law, i. c., without interest.36

Prior to the Revised Statutes the Act 25 Geo. II, re-enacted in New York as above stated, had received construction by the courts which generally adopted the English cases on English statutes. In the case of Jackson v. Woods, in 1799, it was held that where either husband or wife was a witness to a will containing a legacy or devise to either, the devise or legacy was veid by the statute, and the witness, therefore, competent.37 In 1809 it was held that the statute was peremptory, and a devise to a witness to a will absolutely void to every intent.38 This ruling was obviously assumed as correct by the Court of Errors as late as 1824.39

The revisers of the Revised Statutes desired to soften the operation of such a severe penalty, for the exigencies of those in articulo mortis often required laste in executing last wills, and only interested witnesses might be at hand for the purpose. To forfeit the "birthright" of heirs and next of kin, who were beneficiaries under a will which they inadvertently attested, the revisers thought hard law.40

It will have been perceived, that the present section of the Decedent Estate Law is but a transcript of the Revised Statutes,* which were in turn an amendment of the English Act, 25 Geo. II, considered at length above. The “Notes of the Revisers," set forth in our appendix, give their reasons for the amendments proposed by them. Where a will could be proved without the testimony of a subscribing witness, he was to be excepted from the forfeiture, and was not to lose his legacy or devise. Secondly, where an heir-at-law, or next of kin, was a witness, they were

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36 See the Judgment of Pratt, Lord Camden (cited in 4 Burn's Eccls. Law, p. 117), criticising Lord Mansfield's opinion in the great case of Wyndham v. Chetwynd.

37 See Benson, J., Jackson ex dem., etc. v. Woods, i Johns. Cas. 163; Hopkins v. Lane, 6 Dem. p. 17. Cf. Du Bois v. Brown, i id. 317, 325; and Estate of Orser, 4 N. Y. Civ. Pro. Rep. 126, 136, which seem

erroneous on the point, that a witness whose legacy was void was incompetent before the Revised Statutes.

38 Jackson ex dem., etc., v. Denniston, 4 Johns. 311.

39 Sharpsteen v. Tillou, 3 Cow. 651.

40 See notes 9 and 10, Appendix II, 3. fra.

41 See above, p. 222.

given their “birtiright" by statute, notwithstanding the forfeiture of their devise or bequest, unless such “birthright" exceeded in amount the legacy or devise, when the natural shares were cut down to correspond in quantum to the value given by the will.42 But in no case could such a devisee or legatee take more than their “birthright." 43

Executors and Testamentary Trustees as Attesting Witnesses. Under the Revised Statutes it was at one time assumed, that an executor or a testamentary trustee was incompetent under this section unless he renounced.44 But now this doctrine is confined to a case where an executor is also a legatee.*5 In McDonough v. Loughlin,4" it was held that an executor is not disqualified by reason of his title to statutory fees alone, and this decision has been cited and approved by the Court of Appeals."? Such appears to be the construction now of the surrogates' courts.48 Even a legacy or bequest of an attesting witness, who is an executor or trustee, given as compensation for such service, is held to be not such a beneficial devise, legacy, or interest as the statute avoids, in case such executor's or trustee's testimony is indispensable to prove the will.49

When Attesting Witnesses Do Not Forfeit Legacy or Devise. Since the Revised Statutes whenever a will may be or is in fact proved without the aid of a subscribing witness who is a legatee or devisee, his legacy or devise is not forfeited under this section, which is allowed to refer only to cases where the testimony of the interested witness is indispensable, and actually taken.50

Thus 42 See notes 9 and 10, Appendix 38 Butler's Inventory, i Tucker, 87. II, infra.

49 Pruyn v. Brinkerhoff, 57 Barb. 43 Estate of Orser, 4 N. Y. Civ. 176; Matter of Will of Wilson, 103 Pro. Rep. 126, 136.

N. Y. 374. Cf. Matter of Burke, 44 Burritt v. Silliman, 13 N. Y. 93. 5 Redf. 369. 45 Lane v. Lane, 95 N. Y. 494.

50 Caw v. Robertson, 5 N. Y. 125; 20 Barb. 238; and see Pruyn v. Cornell v. Wooley, 3 Keyes, 378; Brinkerhoff, 57 id. 176; Matter of S. C., 47 Barb. 327, affd., I Abb. Ct. Burke, 5 Redf. 369.

App. Dec. 441; and 43 How. Pr. 47 Children's Aid Society v. Love- 475; 4 Abb. Pr. N. S. 40, sub. nom., ridge, 70 N. Y. 387, 392; Matter of Cornwell v. Wooley; Matter of Will of Wilson, 103 id. 374, 376; Johnson, 37 Misc. 334; Reeve Barnard v. Barnard, 7 N. Y. Supp. Crosby, 3 Redf. 74. 275; and see Rugg v. Rugg, 21 Hun, 383, affd., 83 N. Y. 592; Schoonmaker v. Wolford, 20 Hun, 166.

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where a legatee in a will is an attesting witness to a codicil, which does not benefit him and is not proved, his legacy given by the will is not forfeited.51

When Attesting Witness Forfeits Legacy or Devise. Wherever the will can not be proved without the evidence of an attesting witness, who benefits by the will, then the benefit is forfeited, whether the testimony of such witness is believed or not. 52 But such witness nevertheless may be compelled to testify.53

Qualification Saving "Birthright.” The part of this section saving the shares of those who would be entitled to take, on an intestate succession from testator, in case their legacies or devises are forfeited under this section, can apply only to next of kin or heirs-at-law of the decedent. It can have no reference to other legatees or devisees who would not take on an intestate succession.54

Procedure When Devise or Legacy Forfeited. Whenever it is claimed that a devise or a legacy is forfeited under this section the claim or issue can not be tried on the probate of the will, but only when the devisee or legatee makes the claim either by action brought for that purpose, or on a final accounting or other proceeding:55

Interest of Attesting Witnesses. There are other provisions of law relating to the interest of attesting witnesses which should be noticed. The Revised Statutes, as part of the reform indicated above, also provided that no creditor of a decedent whose debt was charged on the land should be incompetent as an attesting witness.56 In 1880 this section was in substance transferred to Part II of the Code of Civil Procedure, relating to surrogates' courts, where it now is.57 Interest alone no longer disqualifies a witness as it did at common law,58 excepting in a few cases prescribed by statute. 59 As these exceptions have no particular reference to attesting witnesses to a will, they need not be now considered at length under this section of the Decedent Estate Law.

51 Matter of Johnson, 37 Misc. 334.

62 Matter of Brown, 31 Hun, 166; Hopkins v. Lane, 6 Dem. 12, 16, 17.

63 § 2544, Code Civ. Pro.; Matter of Eysaman, 113 N. Y. 62; Matter of Beck, 6 App. Div. 211.

54 See $ 27, Decedent Estate Law. 65 Matter of Beck, 6 App. Div.

211, 214; Estate of Orser, 4 N. Y. Civ. Pro. Rep. 126, 136.

56 2 R. S. 57, § 6, taken from $ 12, 2 R. L. of 1813, re-enacting 25 Geo. II, chap. 6, to same effect.

67 s 2544, Code Civ. Pro. Cf. Matter of Eysaman, 113 N. Y. 162; Matter of Beck, 6 App. Div. 211.

Waiver of Forfeiture of Legacy to Attesting Witnesses. Whether if all the beneficiaries under the will, the heirs-at-law, and next of kin of testator, waive the forfeiture made by the statute, the attesting witness is in that event rendered competent without forfeiture is a grave question. Certainly part of the beneficiaries and next of kin or heirs-at-law may not waive the forfeiture, and if all do, whether the witness is thereby rendered competent remains a question. The statute intended to qualify an interested attesting witness by taking away his interest. A waiver of forfeiture contradicts the statute.c1

58 $ 828, Code Civ. Pro.; Seguine v. Seguine, 2 Barb. 385.

Chap. IX, Code Civ. Pro. 60 Hopkins v. Lane, 6 Dem. 12, 16, 17.

61 Cf. Matter of John Tonnele's Will, 5 N. Y. Legal Observer, 254; Seguine v. Seguine, 2 Barb. 385.

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§ 28. Action by child born after making of will, or by sub

scribing witness. A child, born after the making of a will, who is entitled to succeed to a part of the real or personal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed.

Formerly $ 1868, Code of Civil Procedure:

$ 1868. Action by child born after will, or by witness to will. A child, born after the making of a will, who is entitled to succeed to a part of the real or personal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed.62

Comment. Section 1868 of the Code of Civil Procedure was the result of the late Mr. Throup's revision of the Revised Statutes, when re-enacted as Part II of the present Code of Civil Procedure.63 He states in his note to section 1868: “2 R. S. part 3, chap. 8, tit. 3, sections 62-66, consolidated and much condensed." The sections of the Revised Statutes to which he refers are as follows:

62 Repealed, § 130, Decedent Estate Law.

63 Chap. 178, Laws of 1880.

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