
    In the Matter of the Probate of the Will of Alfred F. Dunham, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed June 17, 1890.)
    
    Evidence—Witness—Code Civ. Peo., § 829. v
    Contestant, who had made objection to the admission to probate of a codicil to a will that there had been undue influence or restraint exerted upon the deceased, and also alleged his mental incapacity, offered to prove conversations and transactions had by decedent with the witness (who was a nephew and legatee under the will), and with others in the presence of the witness. The codicil gave the proponent a large legacy. Held, that the court properly excluded the evidence under Code Civ. Pro., § 829. (Earl, J., dissents.)
    
      Appeal from judgment of the supreme court, general term, second department, affirming decree of surrogate admitting will to probate.
    
      Edwin M. Fox, for app’lt; Jerry A. Wernberg, for resp’t
    
      
       Affirming 15 N. Y. State Rep., 869.
    
   Gray, J.

All the questions presented in this record were rightly disposed of in the courts below. The only ones which, in my opinion, were of sufficient importance to demand consideration, arose upon the exceptions of the appellant to the exclusion of the evidence of a witness as to conversations and transactions had by decedent with the witness and with others in the presence of the witness. The witness was the nephew and both a specific and a residuary legatee under the will of the testator. The object of the proposed evidence could only have been to show undue influence, or restraint, exerted upon the deceased; or his mental incapacity; for it was offered by the contestant under formal objections, upon these grounds, to the admission to probate of a codicil to the original will; by which there was given from the estate to the proponent of the codicil, respondent here, a legacy, relatively large in amount. Therefore, while as to any communications, or transactions, with the witness the proposed evidence was plainly enough inhibited by § 829 of the Code, his testimony as to' conversations, or transactions, while he was present in the room, had between the deceased and other persons was, under the circumstances, inadmissible. In the case of Holcomb v. Holcomb, 95 N. Y., 316, and more recently in the Matter of Eysaman's Will, 113 N. Y., 62; 22 N. Y. State Rep., 136, this court has given such a construction to this provision of the Code, as would prohibit a person, interested in the event, from giving such evidence. The ground for the ruling is that communications in the presence of the witness are deemed to be made to him. While the ruling may be said to be stretched to the extremest tension, it has the merit, possibly, of being in furtherance of justice.

The evidence is intended to work, here, against the respondent, who derives her interest under testator’s codicil and whose lips are sealed by the law as to the matters ; and to permit a witness, so much interested as this one was in the amount of the estate ultimately distributable, to testify to things said and done by testator, though with others, but while he was present, with the only supposable purpose of affecting the interests of the respondent, would certainly seem to be giving an undue advantage to the one as against the other. This is certainly true, if the evidence sought to be elicited is material in its bearing upon the question of restraint, or influence, upon testator, or upon his disposing strength of mind; while, if it is. not material, the exclusion of the evidence has worked no prejudice to the appellant, and hence would not require a reversal for error. This section of the Code offers considerable difficulty in the endeavor to give to its provisions a reasonable and just interpretation; and each case, as it arises, may in its circumstances control the application of the rule intended to be established by the legislature. It suffices, as to this case, to hold that within the authorities cited by me, the evidence was properly excluded.

The judgment appealed from should be affirmed, with costs to the appellant to be paid out of the estate.

All concur, except Earl, J., dissenting, and Andrews, J., absent  