In the Matter of the Probate of the Last Will and Testament and Codicil of Ellen Crane, Deceased. Catherine Mulcahy, Appellant; Edmund J. Healey, as Executor, etc., of Ellen Crane, Deceased, Respondent

In the Matter of the Probate of the Last Will and Testament and Codicil of Ellen Crane, Deceased. Catherine Mulcahy, Appellant; Edmund J. Healey, as Executor, etc., of Ellen Crane, Deceased, Respondent. Probate of a will — statement by a party that he saw the testatrix when at her house—probate of a will sustained notwithstanding incompetent evidence — effect of there being no attestation clause—-.an allowance should be to the party. Where the probate of a will is contested,on the ground that it was procured by the undue influence of a legatee named therein, and it is shown that such legatee visited the testatrix’s house, testimony given by him in rebuttal to the effect that on such visits he saw the testatrix and another person, is not incompetent under section 829 of the Code of Civil Procedure. On an appeal from a surrogate’s decree the Appellate Division may disregard incompetent testimony received by the surrogate and affirm the decree, if it finds on an examination of the other evidence in the case that the decision of the surrogate was correct. The mere fact that no attestation clause is attached to a codicil will not invalidate it. An allowance made by a surrogate should be made directly to the party and not to his counsel. Appeal by the contestant, Catherine Mulcahy, from a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 10th day of September, 1900, admitting to probate a paper purporting to be the last will and testament, and codicil thereto, of Ellen Crane, deceased. The probate of the will was contested on the ground that it was obtained by undue influence practised upon the testatrix by one Sulr divan, a legatee mentioned in the will. O. B'. Thomas, for the appellant. " Bami'el Brown, iov the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: It appears that the testator left an estate of nearly $11,000. The natural objects of her bounty were a sister, two nieces, a nephew and a grandniece. She gave something more than $2,000 each to her sister, her nieces and her grandniece, and made the grandniece the residuary legatee. She gave $300 to certain charities, $600 to Father Flannery, or whoever may be q>arson of the Roman Catholic church at Far ■ Rockaway,- out of which he was' to distribute $300 for specific benevolent purposes; she also gave either $900 or $1,200 to three .different priests of the church, and requested that they should Say masses for the repose of her soul and of the souls of her husband and her son, who had been a student for the priesthood. She 'made no mention of her nephew, who lives in Ireland. The testimony of Judge Healey, who prepared the will, of her .physician and of the subscribing witnesses, is clear and convincing as to her campe-' ’tency, her free agency and of the due execution of the will and its codicil, and we do not think that the learned surrogate erred in his determination which upheld the will. It is objected that the testimony of Father Sullivan, who was a legatee, under the will, was prohibited by section 829 of the Code. We fail to find that alone it could be held to refer to any personal transaction or communication with the .testatrix ; that any objection was made save in one instance. Mr. Sullivan testified that he would go to the house three or four times a year. “ Q. And upon those occasions whom did you see in the Crane house? [Objected' to *' * * on same grounds as before, (i. e., irrelevant, immaterial and incompetent.) Objection overruled. Exception.] A. Mrs. Crane and the girl, Agnes Carberry, 1 think.” Ho motion was made to strike out. ' Conceding that the objection wras sufficiently definite, this testimony was in rebuttal. Testimony had been given relative to Mr. Sullivan’s visits to the house, and I think the . evidence was admissible under Pinney v. Orth (88 N. Y. 447). This testimony was quite unimportant, and may be entirely disregarded without affecting the result one whit. Disregarding it and examining the case, as we may do (Matter of Rogers, 10 App. Div. 593; Matter of Welling, 51 id. 355), we think that the- decision of the learned surrogate was right. The mere fact that there was no attestation clause to the codicil does not invalidate it. (Lewis v. Merritt, 98 N. Y. 207.) I think, however, that the decree must be modified by striking out the allowance made to the counsel for Mr. Sullivan, and by making the other allowance directly to the party and not to Daniel Brown, Esq. (Matter of Welling, supra), and by providing that the same shall be payable out of the estate. As. thus modified, it should be affirmed. All concurred. Decree of the Surrogate’s Court of Queens county modified in accordance with the opinion of Jenks, J., and as modified affirmed, with costs payable out of the estate.