
    In the Matter of Proving the Will of John McCarthy, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Will—Competency of testator—Evidence.
    Upon the application for probate of a will it appeared that the testator was over eighty-two years of age at the time of its execution; that he had been, for some time prior thereto, very seriously ill with an incurable disease, his mind in a feeble condition his physician had ceased to treat him, giving as a reason that he could do nothing further to arrest the disease; that on the day the will was signed he was lying helpless upon his bed, and his mind so impaired, that lie was unable to carry on conversation, and that it was with great difficulty, if np£ impossible, for him to comprehend the questions put to him. The surrogate found that the testator did not have sufficient strength of mind to execute a will. Held, that the finding was justified by the evidence.
    2. Same—Conversation of widow of deceased and attorney.
    In such proceeding a conversation between the widow of the deceased and an attorney, occurring after the death of her husband, and consisting mainly of advice to her not to oppose the probate of the will, and promises by the attorney that he would not take an active part in the proceedings to prove the will, is incompetent.
    3. Same—Evidence.
    So, also, a question put to the attorney who drew the will, as to who gave him the instructions to draw it, such instructions not being given in the hearing or presence of any other person than the testator and witness, is incompetent.
    4. Same—Physician’s contradiction.
    In such proceeding a physician gave evidence tending to show that, nr his opinion, the testator was competent to make the will, and denied that he had stated otherwise. Held, competent to contradict him by showing that he had stated that in his opinion the deceased was not competent to make a will.
    Appeal from a decree of the surrogate of Ontario county,, entered on the 24th day of October, 1891, refusing probate to an instrument alleged to be the last will of John McCarthy, deceased, on the ground that the decedent was mentally incompetent to make a will.
    
      John E. Bean, for app’lt; D. B. Backenstose, for resp’ts.
   Lewis, J.

The will in controversy bears date the 16th day of November, 1888, and the deceased died on the 22d of December following.

The surrogate found that McCarthy was at the time of the alleged execution of the instrument propounded as his will of unsound .mind and memory and not competent to execute the same.

The deceased was eighty-two years old and upwards when he died. He had been for. some time before the 16th of November, the date of the will, very seriously ill with an incurable disease. His mind was in a very feeble condition, his physician had ceased to treat him, giving as a reason that, he could do nothing further to arrest the progress of the disease.

The evidence tends to show that on the day the will was signed McCarthy was lying helpless upon his bed and that his inind was ■so impaired that he was unable to carry on conversation. The testimony as to his condition was quite conflicting, but it fairly ■establishes that it was with great difficulty, if not impossible for him to comprehend the questions that were put to him, and it is very doubtful if he had sufficient strength of mind to comprehend the nature and effect of the act of executing the will. The surrogate, who saw the witnesses and heard their testimony, has found as a fact that he did not have sufficient strength of mind to execute a will. His findings, we think, were justified by the evidence and should not be disturbed, unless errors were committed mpon the trial requiring a reversal..

Section 2545 of the Code of Civil Procedure provides that the decree of a surrogate admitting or rejecting a will must not be reversed for an error in admitting or rejecting evidence unless it appear to the appellate court that the exceptant was necessarily prejudiced thereby.

The conversation between Mrs. McCarthy, the widow of the deceased, and the attorney, Nicholas, was incompetent and immaterial. She testified that it occurred after the death of her lius-’ band It consisted mainly in the advice of Mr. Nicholas to her not to oppose the prob&te of the will, and promises on his part that he would not take an active part in the proceedings to prove the will. While it was incompetent evidence, it is not apparent that it necessarily or probably had any effect upon the decision of the surrogate.

The question put to ’ Mr. Nicholas, the attorney who drevr the will, as to who gave him the instructions to draw the will, was, we think, properly excluded. He testified that he did not get the instructions from any other person than John McCarthy, the testator. The surrogate properly held that the testimony was incompetent unless the instructions were given in- the hearing or presence of some other person than the testator and the witness. Loder v. Whelpley, 111 N. Y., 239 ; 19 St. Rep., 631; Matter of Coleman, 111 N. Y., 220; 19 St. Rep., 501.

Dr. Rodenberger gave evidence tending to show that in his •opinion McCarthy was competent to make the will He denied that he had stated otherwise. It was competent to contradict him by showing that he had stated that the deceased was, in his opinion, not competent to make a will. The question put to the witness Mary Ann Lynch, viz.: “ Could McCarthy at any time after the 15th of November, 1888, carry on a connected conversation with anybody,” was objectionable as calling for the opinion of an inexpert witness, but it is apparent from what followed that the answer did not injure the proponent's case. The surrogate understood her answer to mean simply that the witness thought that McCarthy was so weak that he did not possess sufficient physical .strength-to carry on a connected conversation.

The testimony of Mrs. Nobles as to what her father’s physical condition was when she reached home, and whether he left his bed room after she arrived, did not relate to any personal transaction •or communication between her and her father, and was not objectionable.

This case has been thoroughly litigated; it has been tried by the surrogate three times, and this is the third appeal to this court. We think the findings of the surrogate fairly sustained by the evidence and as we find no errors occurring upon the trial of sufficient importance to justify a reversal, the decree appealed from should be affirmed, with costs to the proponent and contestants, to be paid out of the estate.

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