McDonough v. Loughlin
New York Supreme Court
THIS was an appeal from a decree of the surrogate of the county of Kings, admitting the will of James McDonough, late of the city of Brooklyn, to probate, and determining that Eugene Oassidy was not disqualified from acting and taking letters testamentary as one of the executors of the said will, and that John Loughlin and Eugene Cassidy wrere entitled to receive letters testamentary as executors of the said James McDonough.
Read the full summary
THIS was an appeal from a decree of the surrogate of the county of Kings, admitting the will of James McDonough, late of the city of Brooklyn, to probate, and determining that Eugene Oassidy was not disqualified from acting and taking letters testamentary as one of the executors of the said will, and that John Loughlin and Eugene Cassidy wrere entitled to receive letters testamentary as executors of the said James McDonough. On the 2d day of Dec. 1853, Eugene Cassidy appeared before the surrogate and presented his application in writing, setting forth that he was an executor named in the last…
1Opinion of the Court
By the Court, S. B. Strong, J.
The statute would have made the respondent Cassidy a competent witness to prove the execution of the will, even if he would have otherwise been excluded by the rules of the common law. (2 R. S. 65, § 50.) The only objection, of any weight, to his admissibility was that he was the applicant to establish the will, and therefore responsible for the costs, in the event of a failure. That objection not having been raised before the surrogate, it must be deemed to have been waived, and can be of no avail on an *244appeal. (Leach v. Kelsey, 7 Barb. 466. 1 Cowen & Hill’s…
2Cases cited2 opinions
- Leach v. KelseyNew York Supreme Court · 1849
- Burritt v. SillimanNew York Supreme Court · 1853
3Cited by12 opinions
- Children's Aid Society v. . LoveridgeNew York Court of Appeals · 1877
- In Re the Probate of the Last Will & Testament of WilsonNew York Court of Appeals · 1886
- Burritt v. . SillimanNew York Court of Appeals · 1855
- In re BeckAppellate Division of the Supreme Court of the State of New York · 1896
- Reeve v. CrosbyNew York Surrogate's Court · 1877
7 more not listed; retrieve them via the Exa API.