In re the Will of Bartholick — 35 N.Y. St. Rep. 730

Majority

p. 730

In the Matter of the Will of George A. Bartholick, Dec’d.

(Supreme Court, General Term, Fifth Department,

Filed January 23, 1891.)

Headnote

1. Will—Pbobate—Evidence.

Testimony of a legatee as to personal communications and transactions of testator is not admissible on a contested proceeding for probate of a will, although such communications and transactions were not personal to herself, but only in her presence.

2. Same.

The writer of the will wrote himself a legacy, and although he copied a former draft of will, it did not satisfactorily appear what changes he made, nor whether the will was read to or its contents understood by testator,who was enfeebled in mind and body by disease and old age, except by the testimony of a legatee. Held, that a case was not made out on the facts for admission of the will to probate.

Appeal by the contestants from a decree of the surrogate of Monroe county, admitting the proposed will to probate.

J. A. Stull, for contestants, app’lts; Theo. Bacon, for proponents, resp’ts.

The writer of the will wrote himself a of $15,000; and although there was some evidence tending to show that he copied the instrument in ¡Dart from a former draft of a will, the provisions of which were substantially dictated by the testator, it does not satisfactorily appear what changes were made by the writer of the new will, nor, in the absence of the testimony hereafter mentioned, whether the will, as executed, was ever read to, nor how far its provisions were understood by the testator, who at the time of its execution was much enfeebled in mind and body by old age and disease.

The principal witness for the proponents, upon both the questions of testamentary capacity of the testator and of undue influence or deceit, was another legatee, for the sum of $5,500, who also stood in a confidential .relation to the testator, as his housekeeper and personal attendant, and she was permitted to testify, under objection of the contestants, to many transactions and communications, especially in immediate connection with the execution of the will, seen and heard by her.

The objections to the testimony of this witness were overruled upon the ground that such transactions and communications were not personal to herself, but only in her presence. The law now seems to be settled that this testimony was inadmissible. In re Eysaman, 113 N. Y., 62 ; 22 N. Y. State Rep., 136; In re Dunham, 121 N. Y., 575 ; 31 N. Y. State Rep., 858. Such being the case we have felt called upon, in our .consideration of this appeal, to reject the testimony of the witness (Lizzie Wiggins), referred to; and, in its absence, as already intimated, a case upon the facts is not made, to our satisfaction, for the admission of this will to probate.

p. 731

We have, therefore, reached the conclusion that the decree of the surrogate should be reversed, upon a question of fact, and that a trial by jury should be had of the material questions of fact arising upon the issues between the parties. Code of Civ. Pro., § 2588.

So ordered. Order to be settled by the presiding justice.

Dwight, P. J., Macomber and Corlett, JJ., concur.