In re the Probate of the Will of Lasak — 31 N.Y. St. Rep. 203

Majority

p. 203

In the Matter of the Probate of the Will of Francis W. Lasak, Deceased.

(Supreme Court, General Term, Second Department,

Filed May 12, 1890.)

Headnote

Evidence—Code Crv. Pro., §839.

In proceedings for the probate of a will, the contestants called as a witness a daughter of the decedent, who testified to personal transactions and communications with her father. This testimony was subsequently stricken out. Held, no error; that the witness was a party and a person interested in the event of the litigation within the meaning of § 839 of the Code.

Appeal by Margaret S. Ives, as contestant, from a decree of the surrogate of Westchester county, admitting to probate the last will, etc., with seven codicils thereto annexed, of Francis W. Lasak, deceased.

Charles F. Mac Lean, for app’lt; Filas B. Brownell, for resp’t, John Gr. Wendel; George G. Beynolds, for resp’t, Victoria A. McKenzie ; Edgar M. Johnson, for resp’t, Ophelia J. Outhbert; Fred B. Van Torsi, for resp’t, Children’s Aid Society; Aaron Kahn, for resp’t, Antoinette L. Schermerhorn; Bartlett, Wilson & Hayden, for resp’t, American Female Guardian Society and Home for the Friendless.

This is an appeal by one of the contestants from a decree of the surrogate admitting to probate the last will and testament of Francis W. Lasak, and upon the argument the counsel for the appellant abandoned all objections to the decree except one which we will now consider.

Mrs. Margaret S. Ives, a granddaughter of the deceased, was one of the contestants of his will, and during the trial she called as a witness Mrs. Cordelia D. Chauvet, one of the daughters of the deceased, and she was permitted over the objection of one of the counsel to testify to personal transactions and communications between herself and her father.

On a subsequent day, however, all testimony of the witness concerning personal transactions and communications with the deceased were stricken out and the counsel for Mrs. Ives excepted to such ruling.

p. 204

We think the exception presents no error. “ "Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event * * * shall not "be examined as a witness in his own behalf or interest * * * against the executor, administrator or survivor of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person.” Section 829, Code Civ. Pro.

Mrs. Chauvet sustained the double relation of party and person interested in the event of the litigation over her father’s will. If the will was destroyed she received her interest in* her father’s estate as heir, and if it was sustained she took the portion given her by the will, and she would receive more or less according to the conclusion of the litigation. It is not needful to determine which result would be most beneficial to her or best promote her interest. If the determination would be either advantageous or detrimental to her, then her interest in the event is sufficiently apparent to exclude her testimony.

The language employed in the statute is exceedingly comprehensive and its scope is co-extensive with the words and actions between two persons. The statute has come to be considered very beneficial and the testimony which it inhibits is excluded by the courts with inflexible uniformity.

In the case of Wadsworth v. Heermans, 85 N. Y., 639 , Judge Finch says in the opinion in speaking of this statute, “ The spirit and purpose of this provision of the Code is equality to prevent undue advantage, and that purpose should be kept in view when border questions arise and lines of distinction are to be drawn.”

The decree should be affirmed, with costs to be paid from the estate.

Barnard, P. J., and Pratt, J., concur.