
    Michael Bowen, Resp’t, v. Michael Sweeney et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Evidence—Husband of devisee—Code Crv. Peo., § 829.
    Upon the trial of a partition suit, where the issue was the validity of a will, the court excluded the testimony of the husband of one of the devisees named In the will, on the ground that the witness was interested in the will. Held., error.
    Appeal from interlocutory judgment of partition and sale.
    
      W. H. Arnoux, for app’lts; F. B Candler, for resp’t.
   Van Brunt, P. J.

This action was brought for a partition and sale of certain property in the city of New York, the plaintiff claiming to be interested therein as tenant in common with certain of the defendants. The first complaint in the action was demurred to by the appellants, and it was sustained apparently on the ground that no facts were alleged which showed any interest in the realty belonging to the demurring defendants, and that there was no clear averment of fact upon the subject of a last will and testament of Mary Hatton or the absence of such an instrument. The plaintiff thereupon amended his complaint, alleging that Mary Hatton had died intestate, unmarried and without issue. To this complaint the appellants answered setting up that the said Mary Hatton had made a will by which she devised to them all her estate, of which the premises in question were part, and that such devisees were in the exclusive possession thereof. The court thereupon made an order directing that the cause be put upon the circuit calendar to the end that the trial of the action might be proceeded with and the issues of fact therein contained or such of them as might be necessary might be tried before a court and 3UTy-

Upon the case coming up for trial at the circuit the will of Mary Hatton, referred to in the answer of the defendants, was in-traduced in evidence after proof, and thereupon the plaintiff -sought to attack the same by evidence in reference to its execution. Objection being raised, apparently because of the condition ■of the pleadings, the plaintiff’s counsel moved to amend his complaint by an allegation that Mrs. Hatton left what purported to be a will, but which was not her last will and testament, because it was not properl}'- executed, and because she was not competent to make a will, and that it was obtained from her in an unlawful manner by undue influence. Objection was made by the defendants’ counsel; the objection was overruled and an exception taken. The plaintiff’s counsel thereupon reduced the amendment to form, and the court stated that the amendment would be granted upon terms, and that if the defendants desired, a juror would be withdrawn and the trial, postponed. The defendants’ counsel stated that he did not desire to postpone the trial, and asked that the amendment be reduced to writing and sworn to by the plaintiff, which was done, and the trial thereupon proceeded, and upon the close of the testimony certain issues were framed and submitted to the jury. The peculiarity of one of these issues it is not necessary to discuss, in view of the result which follows the decision of this appeal.

It is now urged that it was error in the court to allow the amendment which was done upon the trial, and in this view we .-are inclined to concur. The attention of the plaintiff’s counsel was distinctly called to the defect in pleading upon the decision of the demurrer to the previous complaint, and he failed to amend his complaint meeting this objection. On this state of facts, as the complaint existed at the time the trial of the issues were ■commenced at the circuit, the plaintiff had no standing in court, he not being in possession of the property sought to be partitioned or any part thereof.

Whatever rights he had were conferred by § 1537 of the Code, where it is provided that a person claiming to be entitled as a joint tenant or tenant in cqmmon by reason of his being the heir •of a person who died holding and in possession of real property may maintain an action for the partition thereof, whether he is in ■or out of possession, notwithstanding an apparent devise thereof to another by the decedent and possession under such devise; but in such an action the plaintiff must allege and establish that the apparent devise is void.

The right to maintain such an action did not exist prior to the passage of chap. 238 of the Laws of 1853, and hence it is an ■entirely different action from the ordinary action of partition, which could only be brought where two or more persons held and were in possession of real property; possession being a necessary ingredient to the maintenance of the action. Chap. 238 of the Laws of 1853 was an innovation in the procedure for partition, and conferred a new and different right of action from that which ever existed before. And it may be doubtful whether it is not such a new and separate and distinct cause of action that it cannot be imported into a complaint for partition by amendment. But whether it was so or not, we do not think that upon a trial after the notice which this plaintiff had received of the defects in his complaint that the amendment should have been allowed.

Without discussing in any way the merits of this case, or considering the testimony which is referred to at so great length upon the points of counsel in reference to the sufficiency of the proof to sustain the findings of the jury, it will only be necessary to call attention to one or two exceptions to the admission of evidence which are fatal to the judgment in question.

One Francis Gallagher was called as a witness upon the part of the defendants. Much testimony had been given in reference to the knowledge which Mrs. Hatton had of this will and of the circumstances under which it was executed, it being claimed that she did not know what she was doing, and that it was procured through the undue influence and fraud of the devisees. After having testified that he was the husband of Mrs. Gallagher, one of the devisees named in the will of Mrs. Hatton, he was asked,, “ Had you a conversation with her on the morning before she executed the will ?”

This was objected to, on the ground that the witness is interested in the will and is not competent to testify. He then-testified : “I have children by my present wife.” The objection was sustained, and the defendants excepted. He was then asked “Did you hear Mrs. Hatton say anything about executing or having a will made for her before she executed it?” This was'objected to, the objection sustained, and defendants excepted.

“ Q. Do you know that Mrs. Hatton had this will in her possession for three or four days before the morning she executed it?

“ Objected to; objection sustained; exception.

“Q. After the will was executed did you hear Mrs. Hatton read it? '

“ Objected to ; objection sustained; exception.”

No ground is stated for these last three objections, and it is claimed by the respondent that, as thé objection was a general one, if the evidence could be excluded on any ground whatever,, the court will not hold on appeal that there was error in excluding "the evidence. We are not aware of any such rule. On the-contrary, the only ground upon ■ which an objection can be-sustained without any ground being stated is that it is irrelevant, and immaterial.

But we think that it is fair in the construction of these objections to assume that the evidence was ruled out upon the same ground as was stated in the first objection above referred to.

In making this ruling, however, the court evidently erred.

It is true that if Mrs. Gallagher died leaving'no will, and without having conveyed her real estate, the witness would bo entitled to a tenancy by the curtesy. But as this is simply a contingent interest and not vested, it was no disqualification. The children of a party living have precisely the same interest in the property owned by their parent. If he dies intestate and without having conveyed the property, it falls to them. But they have never been excluded upon the ground of interest. •

This rule is laid down in 1 Greenleaf, 390, where it is stated that the true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent. Thus the heir apparent to an estate is a competent witness in support of the claim of his ancestor, though one who has a vested interest in remainder is not competent; and if the interest is of a doubtful mature the objection goes to the credit of the witness and not to his competency.

This rule was applied in the case of Hobart v. Hobart, 62 N. Y., 80, and In re Clarke, 40 Hun, 233, and in that case the distinction between the contingent interest of a husband in the living wife’s real estate and the vested interest of a wife in the real estate of her husband is pointed out. In the one case the interest may be terminated by the wife; in the other the husband cannot divest his wife of her right to dower. Therefore, the husband was a competent witness in reference to transactions between himself and the deceased.

But it is urged by the respondent that if these questions had been answered, the testimony at most would only have tended to prove that the decedent knew when she executed the will that it was her will, and that fact the jury and the court found in favor of the appellant, so as they were able to establish that fact without any of the answers to thése questions, they were not prejudiced by the rulings of the court excluding them. .

But this claim does not by. any means meet the objection. It is claimed that this will was obtained by fraud and undue influence, and the jury have so found. Mow the declarations of Mrs. Hatton in reference to her will, made before -she executed it, are certainly exceedingly important upon such an issue; as .■also is the evidence of her possession of this will for days before its execution. And in view of the attempt to establish the fact that Mrs. Hatton could not read, evidence going to show that the witness heard her read the will in question seems to be most material.

We see.no escape from holding that the exclusion of this testimony was error, and very serious error to the appellants.

We think, therefore, that the judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

O’Brien, J., concurs.  