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In re Oate's Will

157 N.Y.S. 646 Court N.Y. App. Div. Decision date 1916-02-28 English

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p. 646
In re OATES' WILL.
(Supreme Court, Appellate Division, Second Department.
February 28, 1916.)

Headnote

Witnesses <@=>379—Impeachment—Contradictory Statements.
Where a subscribing witness to a will, on the trial of the issue of testamentary capacity, gave his opinion that the testatrix was of sound mind, and denied that, in the presence of a specified person at a given time and place, he had expressed a contrary opinion, the exclusion of the testimony of the specified person that he had, at the given time and place, said that the testatrix was of unsound mind, was error.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1266; Dec. Dig. <@=>379.]
@^jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Surrogate’s Court, Richmond County.
In the matter of proving the last will and testament of Mary Oates as a will of real and personal property. From a decree admitting the will to probate, John T. Oates appeals. Reversed, and new trial ordered.
Argued before JENICS, P. J., and THOMAS, STAPLETON, MILLS, and PUTNAM, JJ.
Richard J. Donovan, of New York City (Herbert D. Cohen, of New York City, on the brief), for appellant.
John G. Clark, of Stapleton, for respondent.

A subscribing witness to the will, on the trial of the issue of testamentary capacity, gave his opinion that the testatrix was of sound mind. The contestant laid a foundation for impeachment by asking him if at a given time and place, and in the presence of a specified person, he did not express a contrary opinion, to which inquiry he replied in the negative. The contestant then called the specified person to prove that at the time and place named, and in his presence, the subscribing witness said that the testatrix was of unsound mind. The learned trial court excluded this evidence. In doing so', it committed reversible error. Patchin v. Astor Mutual Insurance Co., 13 N. Y. 268 ; Larkin v. Nassau Electric R. R. Co., 205 N. Y. 267 , 98 N. E. 465 ; Waterman v. Chicago & Alton R. Co., 82 Wis. 613 , 629, 52 N. W. 247 , 1136; Sanderson v. Nashua, 44 N. H. 492 , 494; Greenleaf on Evidence (15th Ed.) vol. 1, § 449, p. 596.

Decree of the Surrogate’s Court of Richmond County reversed, and a new trial ordered; costs to abide the event.

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