
    Nannie L. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt. Thomas S. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Decedent’s estates—Evidence.
    Upon the reference of a disputed claim under the statute, where the issue was whether intestate received the money in question in trust for the plaintiff or in another capacity, it is error to allow a witness to testify, in reference to a conversation with intestate at the time of its receipt, that he was to take it in trust, as this was hut a conclusion of the witness upon the main question in the case.
    Appeals from judgments in favor of the plaintiffs, entered upon report of a referee.
    
      T. A. Lillie, for app’lt; W. Farrington, for resp’t.
   Mayham, P. J.

Appeal from a judgment entered in favor of the plaintiff upon the report of a referee, on a disputed claim presented to the defendant as administratrix of her deceased husband, Thomas J. Strong, and referred under the statute with the approval of the surrogate of Washington county.

The main contention in this case was whether the intestate received this money in controversy in trust for the use of plaintiff or in some other capacity.

The capacity in which such money was received by him is the vital question in this case. Any essential error in the receipt of evidence on this point cannot be overlooked on this appeal. Viewed in this light I think the question put to the witness Annie Vaughn, and the answer to the same, and the refusal of the referee to strike the same out, on motion of defendant’s counsel, at fol. 33 to 41 in the case, was error for which this judgment should be reversed.

The question allowed, if it did not call for, the conclusion of the witness, and the answer was but her conclusion upon the main question to be found by the referee in the case, as to whether or not intestate received this money in trust. The answer of the witness was:

“ My brother was to take it in trust in preference to Mr. Swift Mr. Swift thought he was capable, as he did a good deal of business, of investing the money to a better advantageand my brother said he thought he was capable of holding this money in trust for these three children, and then he said about the division between the children.”

The defendant moved to strike out so much of this answer to the question as does not give the conversation. This motion was denied, and the defendant duly excepted.

This answer was given under the objection that the witness should only state the conversation.

To another question put by the plaintiff’s counsel as to what was said about Strong (intestate) holding the money, which was also objected to, the witness answered: “ He was proposed to take it in trust for these children.” This answer the defendant moved to strike out as not being a part of the conversation, and as a conclusion, or deduction of the witness, which motion was not granted.

We think that these answers substituted the conclusion of the witness, who manifestly has a strong bias for her children, who were plaintiffs, for that if the court, and allowed her to make her own deductions from the conversation, instead of giving the conversation, and leaving the court to draw the proper conclusion from it.

It was for the witness to give the language used in the conversation, and for the court to pass upon its effect.

This rule is elementary, and is supported by a uniform current of authorities. This rule is well stated in Rice on Evidence, 326, and in Teerpenning v. Corn Exchange Ins. Co., 43 N. Y., 279, Allen, J., says: “ As a rule, witnesses must state facts, and not draw conclusions, or give opinions. It is the duty of the jury or the court to draw conclusions from the evidence, and form opinions upon the facts proved.”

It is true that this rule does not apply in the case of expert testimony. But in such cases the expert testimony is received in the nature of facts from the necessity of the case.

But in the case last cited it is held that the rule above stated should not be extended or enlarged.

This is not a case where the appellate court can see that the illegal evidence did not harm the defendant or affect the result.

It is unnecessary, therefore, to examine the evidence further or pass upon the weight of evidence offered by the respective parties for the purpose of determining the merits of the controversy.

The judgment should be reversed, the referee discharged and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concur.  