IN RE: the ESTATE OF Viola B. MURTLOW (1999)

Appeal from a decree of the Surrogate's Court of Montgomery County (Tomlinson, S.), entered September 16, 1997, which admitted to probate an instrument purporting to be the last will and testament of decedent.

Viola B. Murtlow (hereinafter decedent) died in May 1995 at the age of 89 leaving a will dated October 4, 1990 naming her attorney, Donald Campbell, as executor and petitioner and certain charitable organizations as beneficiaries.   At the time of her death, decedent was a widow and had no children.   Thereafter, in June 1996, petitioner offered the will for probate and respondent, one of decedent's first cousins, filed objections thereto contending, inter alia, that decedent lacked the testamentary capacity to execute the will and seeking a jury trial.

During discovery, respondent served petitioner with a notice for discovery and inspection that included a demand for the disclosure of expert witnesses pursuant to CPLR 3101(d)(1).   In response thereto, petitioner advised that he did not intend to call any expert witnesses, although he subsequently informed respondent that he would be calling Mary Brusoe, who prepared decedent's income taxes for a number of years, to testify.   In turn, respondent informed petitioner that she intended to testify at trial, as did her daughter, Margaret Filiberto.   Thereafter, the Attorney-General's office, as representative of the charitable bequests, made a motion in limine to preclude any testimony by respondent or Filiberto that related to personal transactions or communications with decedent, contending that such testimony would violate the Dead Man's Statute (see, CPLR 4519).   Surrogate's Court subsequently granted the Attorney-General's application, in which petitioner joined.

At the conclusion of the trial that followed, the jury found in favor of petitioner, concluding that decedent executed the 1990 will in accordance with the statutory requirements and, further, possessed the testamentary capacity to do so at the time of execution.   Surrogate's Court thereafter issued a decree admitting the will to probate and this appeal by respondent ensued.¹

We affirm.   The various arguments raised by respondent on appeal do not warrant extended discussion.   Initially, with respect to respondent's contention that Brusoe's testimony should have been precluded due to petitioner's failure to identify Brusoe as an expert witness, it is clear from a review of the record that Brusoe did not provide expert testimony in this matter.   Accordingly, petitioner's alleged failure to comply with respondent's demand for experts is of no moment.

 Equally unpersuasive is respondent's assertion that Surrogate's Court erred in charging the jury that because the execution of decedent's will was supervised by an attorney, the jury could infer that the will was executed in compliance with the relevant statutory requirements.   Even accepting that Campbell, as executor of the will, could not be said to have been “disinterested”, the inference charge given by Surrogate's Court nonetheless was appropriate (see, Matter of Kindberg, 207 N.Y. 220, 227-228, 100 N.E. 789).   Respondent's remaining challenges to the jury charge have been examined and found to be lacking in merit.

 Finally, it is clear that Filiberto, as a named beneficiary under the two wills that immediately preceded the 1990 will executed by decedent, was a “person interested” in the outcome of the proceeding within the meaning of CPLR 4519 and, hence, appropriately was precluded from testifying as to any personal transactions or communications with decedent (see generally, Poslock v. Teachers' Retirement Bd. of Teachers' Retirement Sys., 88 N.Y.2d 146, 150-151, 643 N.Y.S.2d 935, 666 N.E.2d 528;  Matter of Buchanan, 245 A.D.2d 642, 646, 665 N.Y.S.2d 980).   The mere fact that respondent might encounter certain practical difficulties in admitting either of the prior wills to probate should the will executed by decedent in 1990 fail does not render Filiberto's interest under such wills “ ‘uncertain, remote or contingent’ ” (Friedrich v. Martin, 294 N.Y. 588, 595, 63 N.E.2d 586, quoting Talbot v. Laubheim, 188 N.Y. 421, 426, 81 N.E. 163) and does not alter her status as a person interested in the outcome of this proceeding.

ORDERED that the decree is affirmed, without costs.

FOOTNOTES

1.   Although respondent also purports to challenge the subsequent judgment awarding costs and disbursements to petitioner, we need note only that the record does not reflect that respondent filed a notice of appeal with respect to said judgment and, accordingly, any challenge thereto is not properly before this court for review.

CREW III, J.

MIKOLL, J.P., PETERS, SPAIN and GRAFFEO, JJ., concur.