In re the Probate of the Last Will of Gannon — 51 N.Y. St. Rep. 415

Majority

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In the Matter of the Probate of the Last Will of John Gannon, Dec’d.

(New York Common Pleas, General Term,

Filed February 6, 1893.)

Headnote

1. Will — Probate—Trial of issues by jury.

Where the surrogate directs the proceeding for the prohate of a will to-he determined in the court of common pleas and the issues there tried, the verdict can he reviewed only hy a motion for a new trial upon the minutes, and must he considered the same as in a case tried by a jury under § 999 of the Code, and in such case any errors that may have occurred upon the trial may he reviewed hy the general term.

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53. Same — Appeal.

Although the general term has the power to reverse for errors even where no exception has been taken, it will not do so unless it is clear that injustice has been done and justice would be promoted by a new trial.

"3. New trial — Improper evidence.

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.

4. Will — Capacity.

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 be generally insane.

Appeal from an order made in the above entitled proceeding denying a motion for a new trial.

Daniel J. Cushing (Abram K ling, of counsel), for app’lt; James P. Campbell, for Sarah Gannon, resp’t; William F. Clare, for Bridget McGrath, resp’t; Jesse Grant Roe (Charles H. Beckett, of counsel), for Catherine Brophy, resp’t.

The alleged will- of John Gannon was executed on November 19, 1887, and was contested by all his next of kin, namely, his widow Sarali Gannon, and his sisters Bridget McGrath and Catherine Brophy. By § 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 by 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 be considered the same as in a case tried by a jury under § 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 allowed to testify as to transactions between herself and her husband; Bridget McGrath, a sister of the decedent, interested in the estate as a contestant, was allowed to testify as to what the deceased had told her in regard to his 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 himself 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. Insurance 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.

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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 ; 19 St. Rep., 631 ; Hoyt v. Hoyt, 112 N. Y., 493 ; 21 St. Rep., 593 . And in this case particularly we should not reverse on this account, as it is manifest from the case that these witnesses were deliberately 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 admission 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. 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 be generally insane. There

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is a partial insanity and a total insanity. Such partial insanity may exist as respects particular persons, things or subjects, while as to others the person may not be 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. Jarmin on Wills, 112; Formans 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.