
    In the Matter of the Probate of the Will of Henry C. Bull, Deceased.
    
      (New York Court of Common Fleas, General Term,
    
    
      Filed May 18, 1888.)
    
    T Evidence—When unimpeached testimony of witness is not sufficient TO warrant direction of finding in accordance therewith.
    This proceeding was begun in a surrogate’s court to have an instrument admitted to probate as the last will and testament of a decedent. But upon objections being filed by some of the next of kin of the decedent, the issues arising were transmitted fcr trial by a jury. These were whether at the time of the execution of the papers propounded as the will of the decedent he was of sound mind, memory and understanding, and competent to make a will, and whether at the time of its execution he knew the contents of the said paper and understood what disposition was made of his property. Held, that the two questions were so inseparably connected that a finding of the negative of the first, also negatived the second, and that the circumstances of the case being such as to justify the conclusion that testamentary capacity was wanting, the unimpeached testimony of a witness to the affirmative of the second question was not sufficient to warrant the direction of a finding in accordance with the testimony.
    2. Same—When incompetent evidence is admitted under stipulation, objection cannot be taken on appeal.
    
      B'eld, that where incompetent evidence had been admitted under stipulation, objection could not be urged upon appeal.
    3. Charge to jury—Judge may select his own language—Accuracy of charge is the only question.
    
      Held, that a judge was not bound to adopt a version of the law submitted by counsel, but might state the rules governing the case in his own language, the only question being as to the correctness of such statement.
    
      Weeks & Forster, for app’lt; Hoppin & Talbot, for resp’t.
   Larremore, C. J.

This proceeding was begun in the surrogate’s court of the county of Hew York on the petition of Edward Kendrick, who was named as executor in a. paper purporting to be the last will and testament of Henry C. Bull, deceased, to have said paper duly admitted to probate as such will. Objections to said probate were filed by some of the next of kin of said deceased, and the issues thereupon arising were transmitted to this court, under the statute in such case made and provided, for trial at a trial term thereof. From the finding of the jury upon such trial, and an order denying the motion for a new trial, this appeal is taken. Although the record is very voluminous, the issues themselves are simple. The only questions which the trial judge submitted to the jury were the following :

First. At the time of the execution of the paper propounded as the will of Henry 0. Bull, was he of sound mind, memory and understanding, and competent to make a will ?

Second. At the time of the execution of the said paper, did Henry 0. Bull know the contents thereof, and understand what disposition was made of his property?

The jury found against the proponents, and for the contestants upon both of these questions, and we see no reason why the verdict should be disturbed. It would be difficult to find a clearer illustration than is afforded by the present case, of the familiar rule that an appellate court will not interfere with the finding of a jury upon conflicting evidence, where the actual questions involved were fairly presented. As to the first of these questions—the direct question of testamentary capacity—there is certainly an abundance of evidence, both of experts and ordinary witnesses, to sustain the verdict. Physicians who had examined the deceased, and were acquainted with him, give it as their opinion that at the time the paper in question was executed, he was mentally incapable of making a will, and they, in common with non-professional witnesses, state many facts and circumstances which, if true, tend strongly to substantiate their judgment.

In regard to the evidence in support of the second question, the learned counsel for the appellant certainly has misconceived its force and legal effect. Indeed, he argues that the question whether the deceased knew the contents of the will, or understood the disposition it made of his property, should not have been submitted to the jury at all, but should have been passed upon by the coiirt as a pure question of law. This contention is based upon the fact that Mr. Kendrick, the executor named in said will, testified that the will was read over to the deceased before he signed it, and that said deceased knew and comprehended its contents, and that the testimony of such witness has not been impeached or directly contradicted. Undoubtedly in the trial of an action, if an unimpeached witness testifies unequivocally as to material facts, and no conflict of evidence arises from the testimony of other witnesses, or from the very nature of the circumstances attending the transactions in question, the court is bound to direct a verdict in accordance with the bare testimony of a single witness. But that is far from being this case.

Here a conflict of evidence is produced by the very nature of things. The proponent produces a single witness, who swears that the deceased was familiar with and understood the contents of a paper at a certain time. The contestants in reply offer witnesses who testify that at or about the time in question, the deceased was in such an enfeebled mental condition that he could not have comprehended any matters of business, whether communicated orally or in writing, and therefore that the testimony of the witness, whether intentionally or not on his part, was necessarily false. This, certainly raises a very material conflict of evidence upon which, as upon the other question above referred to, the finding of the jury must be accepted. The two questions of fact upon which the jury passed, though they were separately submitted, are closely related, and it is hardly conceivable that the jury could have found that Henry 0. Bull did not have testamentary capacity, and yet was able to understand and appreciate the legal significance of the paper he signed.

Counsel for appellant also relies upon several other alleged errors, and a few of them may be briefly discussed. It is claimed that witnesses for the contestants, who were not experts, were erroneously allowed to give their opinions upon the general mental and physical condition of the deceased about the time of the execution of the alleged will. This certainly would have amounted to serious error if the stipulation had not made a special and particular rule of evidence for the present proceeding. While laymen may describe the acts or words of a person, and so far express their opinions as to characterize the acts or words themselves as rational or irrational, yet the courts have never gone so far as to allow ordinary witnesses to give their opinions upon the general question of a person’s sanity or insanity. These objectionable questions were all asked and answered in the testimony taken on commission in the state of Illinois. Counsel for .proponent stated early in the case that he intended to take no objections except those which appear noted on the return to the commissions. Counsel for the contestants stated that with that understanding, he would not make any objections to any interrogatory unless an objection appeared noted on the return, except for special reasons to be satisfactory to the court.

Under this agreement both parties proceeded through the trial, and much incompetent evidence, was admitted on both sides, because no objections thereto were noted on the return to the commissions. The evidence, the admission of which counsel for the proponents now claims to be error, came into the case under the operation of this rule, and it would certainly be the height of injustice to allow him to take advantage of such a point upon. appeal, especially as he, himself, under the same stipulation, introduced and got the benefit of the opinions as to the testamentary capacity of Henry Ct Bull, of many witnesses called by himself who were not experts. '

The court also refused to charge a number of requests submitted by proponents’ counsel, but we think that the charge of the judge itself fairly presented all the issues and covered the whole ground. It has been repeatedly held that a judge is not bound to adopt a version of the law submitted by counsel, but that he may state the rules governing the case in his own language, and the only question is as to the accuracy and correctness of such statement. Many of the propositions which the counsel requested the judge to charge were clearly erroneous, and some of the others, though true enough in themselves,. were immaterial and unnecessary. It would have been absolutely immaterial, for instance, for the court to charge the abstract proposition that “all persons except idiots, lunatics and those who were non compos mentis, of lawful age, are competent to make a will, be their understanding ever so weak.’' This statement is undoubtedly good law, but the general truth conveyed by it had been particularly applied in the present case by the judge’s charge on the specific facts here involved. Also as to the fourth request to charge “that the only point of time to be looked at by the jury, at which the capacity of the testator is to be tested, is that when the will was executed.”

The court in our judgment very properly refused to charge the proposition in that precise form. Doubtless, as the counsel for the proponent intended it to be understood, it is a corect statement of the law. Provided a testator is sane, at the time of making his will, it is immaterial if he were insane just before and just after that time. But the jury are not to be precluded from considering the admitted fact that a person was non compos mentis immediately before and immediately after the execution of a paper purporting to be a will, when they come to determine the question whether he had testamentary capacity at the precise moment when the paper was executed. This request in the naked form in which it was submitted was therefore well calculated to mislead an average jury as to their power and duty. We have examined the other exceptions in the case, and find that none of them were well taken, and we do not think it is necessary to comment upon any of them other than those already considered.

The order appealed from should be affirmed, with costs.

Allen and Bookstaver, JJ., concur.  