¶1There may, perhaps, be some question whether the respondents have not waived a right to object to. the executor’s ability to appeal, by their default in not answering, and in allowing an order to be entered that the appeal be heard ex-parte. But passing by the question of waiver, I think the motion to dismiss the appeal to the supreme court from the surrogate’s decree must be denied.
¶2By the statute (2 Rev. Stat., 66, § 55), the right of appeal is given to any devisee or legatee in the will of the testator. The appellant is, I think, both a devisee¡ and a legatee in trust under the will, and unless the devisees and bequests to him. are forfeited by the pro*402visions of 2 Rev. Stat., 65, § 50, he has a clear right of appeal. The statute last cited, does not, I think, deprive the appellant of such right, and he is not such a devisee or legatee as is deprived of that privilege. .The term “beneficial”'in thqt section has been held not to apply to all kinds of devises and bequests, and. none but such as are comprehended within this class are avoided (McDonough v. Loughlin, 20 Barb., 244, 245).. The devise of one thousand dollars was bestoed as a compensation for services to be rendered as an executor ; and it stands in the same position, and partakes of •the same character, as the commissions of an executor. It was not an absolute gift, and not such a devise or legacy as becomes forfeited under the statute. Nor are the devises in trust forfeited within the provisions of the .statute in question. j
¶3This principle is expressly held in the case cited, .■and I think it is decisive upon the question now submitted to our consideration.
¶4It is urged that the statute is superseded and amended Vby section 399 of the Code, and that this should be construed in connection with 2 Rev. Stat., 65, § 50. There •is, perhaps, some force in the suggestion ; but as there .are other grounds upon which this motion should be denied, it is not essential to enter upon a discussion of .the question how far this provision of the Code, designed, .as it was, to change the old common law rule which precluded all persons who were interested from testifying •as witnesses, modifies or affects the statute.
¶5The motion to dismiss the appeal must be denied with ten dollars costs.
¶6Hogeboom and Ingalls, JJ., concurred.
¶7Motion denied, with costs.
¶8 Present, Miller, Ingalls, and Hogeboom, JJ.