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In re Gannon's Will

2 Misc. 329 Court General Term, English

Delivered by Bookstaver, J.

Contents

Majority

p. 329
Matter of Gannon’s Will.
(New York Common Pleas
General Term,
February, 1893.)

Headnote

On a jury trial of the issues arising on the probate of a will, the widow of testator testified as to transactions between herself and husband; a sister testified as to what deceased had told her in regard to the wife; the physician gave testimony as to whether testator had the disease he imagined he had, and the clergyman testified as to conversations he had with testator. Mo objection was taken to this testimony when offered, and no motion made during the trial to strike it out. Held, that as the
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facts testified to by the above witnesses were established by the competent testimony of other witnesses and by deceased’s own letters, no injustice-was done calling for reversal and a new trial.
A separation agreement executed in 1890, is not admissible on a contest of the husband’s will made in 1887, to show the motive for peculiar provision of the will.
The issues in a will contest having been tried before a jury, they found that decedent had testamentary capacity at the time of the execution of the will, but it was also established that the testator was a monomaniac in respect to his wife’s fidelity, and as to. her having communicated to him a venereal disease, and that this was a delusion affecting the will. Held, that an order setting aside the will should be affirmed.
' Appeal from an order made in the above-entitled proceeding, denying a motion for a new trial.
Abram Klmg for proponents (appellants).
James P. Gamvpbell for Sarah Gannon, respondent.
William F. Glare for Bridget McGrath, respondent.
ChaPles JP. Beohett for Catharine Brophy, respondent.

The alleged will of John Gannon was executed on November 19, 1887, and was contested by all his next of kin, namely, his widow, Sarah Gannon, and his sisters, Bridget McGrath and Catharine Brophy. By section 2547 of the Code, the surrogate may direct any special proceeding for the probate of a will, to be determined in the Court of Common Pleas, and he so directed in this case. The issues so sent to this court were tried hy the court and a jury, and resulted in a verdict in favor of the contestants. This, verdict can be reviewed only by a motion for a new trial upon the minutes, and must he considered the same as in a case tried hy a jury under section 999 of the Code when a motion is made for a new trial upon the minutes, and in such case any errors that may have occurred upon the trial may be reviewed by the General Term. The appellant contends that there were manifest errors in the admission of testimony. The widow was

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allowed to testify as to the transactions between herself and her husband; Bridget McGrath, a sister of the contestant, interested in the estate as a contestant, was allowed to testify as to what the deceased had told her in regard to Ms wife ; George McGauran, the physician who had at times attended Gannon as such, was also allowed to testify as to whether Gannon had the disease which he imagined he had; the Rev. Matthew A. Taylor was allowed to testify as to conversations between liimself and the deceased. But no objection was taken to this testimony when offered, nor was any motion made at any time during the progress of the trial to have it stricken out. And although it is true that the court at General Term has the power to reverse for errors, even where no .Exception has been taken ( Wehle v. Haviland, 42 How. 399 ; Kelly v. Frazier, 27 Hun, 314 ; Smith v. Ins. Co., 49 N. Y. 211 ), yet it will not do so unless it is clear that injustice has been done and justice would be promoted by a new trial, Which does not appear in this case. The testimony admitted Was for the most part merely cumulative, and the facts testified to by the witnesses whose testimony is now objected to, Were established beyond any question in our judgment by perfectly competent testimony of other and disinterested witnesses, by the deceased’s own letter, and the testimony of proponent’s witness, who was also a physician, and had examined the deceased as such. In this last respect the appellant did precisely the same thing which he now complains of the contestants doing, that is offering the testimony of a physician who had attended the deceased, as to his mental and physical condition. And it is now the well-settled law of this state that when such testimony is admitted by the parties to the proceeding without objection, the result will not be disturbed; in other words, that the objection to such testimony must be specifically taken or the defeated party cannot avail himself of it upon appeal. Loder v. Whelpley, 111 N. Y. 239 ; Hoyt v. Hoyt, 112 id. 493. And in this case particularly we should not reverse on this account, as it is manifest from the case that these'witnesses were deliberately
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allowed to testify by the appellant without objection because he hoped to obtain from them certain admissions favorable to himself. A party cannot be allowed to speculate upon the result of an action ■ by willingly admitting incompetent testimony in the hope of an advantage to himself, and afterwards, when he finds that the speculation has been unsuccessful, claim that there was such error in the admissions as to entitle him to a new trial. To reverse in such cases would not be in the interest of justice, but would be putting a premium upon speculation.

Appellant also contends that the court erred in excluding the articles of separation executed between the deceased and his wife. Fol. 89. The will was executed in 1887, and the separation agreement was not executed until 1890. This had nothing to do with, nor could it show in any way any motive for, the peculiar provisions of the alleged will, as it was executed three years after the will. If admitted, it would have simply tended to show that Gannon’s delusion possessed his mind completely.

The appellant also claims that the jury having found the decedent had testamentary capacity at the time of the execution of the will, it was error to set it aside on any ground. But it was clearly established on the trial that the decedent was possessed of the idea that his wife was unfaithful to him and had communicated to him a venereal disease; and it was also clearly established that this was a delusion, and that neither the wife had had such a disease, nor had he at any time suffered from it. And it is very certain that this delusion was the chief if not the sole cause for making a will by which he deprived his wife of any portion of his property; the provision for' dower amounting to nothing as he had no real estate. The court correctly charged the law in regard to such delusions. In order to invalidate a will it is not necessary that the intellect should be in total eclipse and oblivion or that the testator should he generally insane. There is a partial insanity and a total insanity. Such partial insanity may exist as respects particular persons, things or subjects, while as

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to others the person may not he destitute of the use of reason. A person may have upon some subjects and even generally, mind and memory, and sense to know and apprehend ordinary transactions, and yet upon the subject of those who would naturally be the objects of his care and bounty, and the reasonable and proper disposition to them of his estate, he may be of unsound mind. In this case we think it clear that he was a monomaniac in respect to his wife’s fidelity, and as to the disease which he claimed she had communicated to him. Monomania is a perversion of the understanding in regard to a single object or a small number of objects with the predominance of mental excitement; while mania is a condition in which the perversion of the understanding embraces all kinds of objects and is accompanied with general mental excitement.

The verdict of the jury in this case preserves and emphasizes that distinction. By it the jury found that Gannon had general testamentary capacity, was not a monomaniac on all subjects, but had an insane delusion affecting the will in question, and was a maniac on that subject, and that such mania influenced the making of the will. This conforms to the rule in this state. Jarmain on Wills, 112; Formats Will, 54 Barb. 274 ; Parish Will Case, 25 N. Y. 9 , and cases there cited.

The order should, therefore, be affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.

Order affirmed.0

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