Montgomery v. Miller
New York Surrogate's Court
The report of the auditor, on the accounting of the executor, which account was contested by John W. Montgomery, and other legatees, contained findings, contested by the executor, that the latter was chargeable with the amount of a bond and mortgage executed by William A. Miller and wife, for $1,100, with interest from February 12, 1869, also with $873.30, the amount of two notes or due bills, of Reay and Pollock given to the decedent, payable on demand and bearing date…
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The report of the auditor, on the accounting of the executor, which account was contested by John W. Montgomery, and other legatees, contained findings, contested by the executor, that the latter was chargeable with the amount of a bond and mortgage executed by William A. Miller and wife, for $1,100, with interest from February 12, 1869, also with $873.30, the amount of two notes or due bills, of Reay and Pollock given to the decedent, payable on demand and bearing date January 1, 1870, one for the sum of $600, the other for $127, including interest to November 20, 1872, and with interest on…
1Opinion of the Court
The Surrogate.
The first question is, whether the testimony of the witness Pollock was properly stricken out by the auditor.
Section 398, of the Code, abrogates the old common law rule, which excluded interested witnesses from testifying, and but for that section that rule would still prevail; but that section excepts from this radical and sweeping change,, certain cases provided in the next, the 399th section, among which "are that the *159persons interested in the event of an action or proceeding, shall not be examined in regard to any personal transactions or communications between such witness…
2Cases cited8 opinions
- Willcox v. SmithNew York Supreme Court · 1858
- Westerlo v. . De WittNew York Court of Appeals · 1867
- Bedell v. . CarllNew York Court of Appeals · 1865
- Varick & Bacon v. JacksonCourt for the Trial of Impeachments and Correction of Errors · 1828
- Hunter v. HunterNew York Supreme Court · 1855
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