In re the Estate of Wickwire

New York Surrogate's Court

In re the Estate of Wickwire

10 Mills Surr. 224, 80 Misc. 137, 141 N.Y.S. 783

DecidedMarch 15, 1913

StatusPublished

This text of 10 Mills Surr. 224 (In re the Estate of Wickwire) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Wickwire, 10 Mills Surr. 224, 80 Misc. 137, 141 N.Y.S. 783 (N.Y. Super. Ct. 1913).

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Opinion

Hart, S.

The decree of probate in the above entitled proceeding was entered in this office September 26, 1900. The petition for probate set forth the only heir and next of kin to be Grace Von Cleaf, grandchild, an infant. Upon the return of the citation in August, the infant appeared by her general guardian, and a special guardian was also appointed to represent the infant. The proceeding was adjourned and the testimony of the subscribing witnesses was taken in open court, as was also the testimony of Irving D. Eckerson, who was named one of the executors in the will.

The present application for the opening of the decree is based on the admission of evidence of the witness Eckerson, alleging it to be incompetent because of his interest as a legatee. There is no evidence before me indicating that the former infant [226]*226has been wronged in any manner, or that her-.rights were not carefully protected; petitioner having rested on the pleadings and submission of the record.

The citation for probate was regularly issued; the infant not only appeared by general guardian, but had the advice and counsel of a special guardian. The decree of probate was signed by my predecessor in office after negotiation and investigation had been made, and an agreement was entered into whereby the infant’s legacy was materially increased. Intermediate orders to show cause were had before this court, the infant always appearing by her general guardian, and whenever her rights were involved Judge Washburn appeared for her and was appointed special guardian. He filed with the court at the time of the entry of the decree of probate a verified report setting forth the result of his investigation and negotiations and also his recommendation that the will should be admitted to probate. An accounting was subsequently had, all of which, from an examination, of the papers on file, appear to have been regularly passed upoti. The infant shortly after attaining her majority appeared in court, and under the supervision of Judge Washburn signed and' acknowledged her release and received the legacy with accumulations as agreed upon previous to the entry of the decree probating the will.

I have examined the cases cited by counsel, and have read over the entire record in this estate. I find that neither of the subscribing witnesses was examined as to the mental capacity of testator, and that the witness Eckerson, without objection, supplied the defect. Why this was done there is nothing in the record to indicate. It has been established that the interest an executor might have in an estate, so far as commissions are concerned, would not disqualify him as a witness—the bequest to the witness is a legacy in lieu of commissions; but, without regard to this technicality, all parties in interest were in court [227]*227on the original citation; the special guardian is a man skilled in law and practice appertaining to probate practice, and, so far as I can ascertain, labored diligently in behalf of his ward. I, therefore, can see no reason why the decree should be disturbed. Petitioner’s application is, therefore, denied, without costs to either party.

Application denied, without costs.

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Hart, S.

The decree of probate in the above entitled proceeding was entered in this office September 26, 1900. The petition for probate set forth the only heir and next of kin to be Grace Von Cleaf, grandchild, an infant. Upon the return of the citation in August, the infant appeared by her general guardian, and a special guardian was also appointed to represent the infant. The proceeding was adjourned and the testimony of the subscribing witnesses was taken in open court, as was also the testimony of Irving D. Eckerson, who was named one of the executors in the will.

The present application for the opening of the decree is based on the admission of evidence of the witness Eckerson, alleging it to be incompetent because of his interest as a legatee. There is no evidence before me indicating that the former infant [226]*226has been wronged in any manner, or that her-.rights were not carefully protected; petitioner having rested on the pleadings and submission of the record.

The citation for probate was regularly issued; the infant not only appeared by general guardian, but had the advice and counsel of a special guardian. The decree of probate was signed by my predecessor in office after negotiation and investigation had been made, and an agreement was entered into whereby the infant’s legacy was materially increased. Intermediate orders to show cause were had before this court, the infant always appearing by her general guardian, and whenever her rights were involved Judge Washburn appeared for her and was appointed special guardian. He filed with the court at the time of the entry of the decree of probate a verified report setting forth the result of his investigation and negotiations and also his recommendation that the will should be admitted to probate. An accounting was subsequently had, all of which, from an examination, of the papers on file, appear to have been regularly passed upoti. The infant shortly after attaining her majority appeared in court, and under the supervision of Judge Washburn signed and' acknowledged her release and received the legacy with accumulations as agreed upon previous to the entry of the decree probating the will.

I have examined the cases cited by counsel, and have read over the entire record in this estate. I find that neither of the subscribing witnesses was examined as to the mental capacity of testator, and that the witness Eckerson, without objection, supplied the defect. Why this was done there is nothing in the record to indicate. It has been established that the interest an executor might have in an estate, so far as commissions are concerned, would not disqualify him as a witness—the bequest to the witness is a legacy in lieu of commissions; but, without regard to this technicality, all parties in interest were in court [227]*227on the original citation; the special guardian is a man skilled in law and practice appertaining to probate practice, and, so far as I can ascertain, labored diligently in behalf of his ward. I, therefore, can see no reason why the decree should be disturbed. Petitioner’s application is, therefore, denied, without costs to either party.

Application denied, without costs.

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10 Mills Surr. 224, 80 Misc. 137, 141 N.Y.S. 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-wickwire-nysurct-1913.