
    LEE a. DILL.
    
      Supreme Court, Fifth District; General Term,
    
    
      April, 1863.
    CoHSTBUCTIOFI OF STATUTE.-EXAMINATION OF PASTY.-“ RePBESEFiTATTVES OF A DECEASED PeeSOFT.”
    In the provision of section 399 of the Code, as it stood prior to the amendment of 1862,—allowing parties to be examined as witnesses, except that parties should not be examined against parties who are representatives of a deceased person and the witness,—the words “representatives of a deceased person’’ should receive a liberal construction.
    If the opposing party is an heir-at-law, next of kin, or devisee, he is a representative of the deceased, and the party propounding a will of ,{3uch deceased for probate cannot be examined as to any transactions had personally between the deceased person and the witness, though such party is competent as to other matters.
    
    Words and phrases in statutes must be deemed to have been used in their usual and proper sense, unless it appears from the context or otherwise that they were used in a technical and restricted sense.
    
      Representatives of a deceased person are real or personal: the former being heirs-at-law, and the latter ordinarily the executors or administrators. The term representatives includes both classes.
    Appeal from the decision of special term affirming the verdict of a jury sustaining a will.
    Upon an appeal from the decree of the surrogate of Onondaga, admitting to probate the will of Samuel Dill, deceased, the decree was reversed, and issues awarded to be tried at a circuit court in Onondaga county. (11 Ante, 214.)
    The issues were tried before Mr. Justice Bacon, and evidence given by the contestants, respectively, touching the questions submitted to the jury, to wit:—
    1. Whether the testator, at the time of the execution of the will, understood its contents and effect.
    2. Whether the will was procured to be executed by fraud or by undue influence practised by Robert L. Dill.
    The testator was over ninety years of age, blind, somewhat deaf, and in infirm health, and lived in the same house with his son, Robert L. Dill, who had charge of his business and property. The testator left him surviving but two children, the appellant, Cornelia A. Lee, and the respondent, Robert L. Dill; and evidence was given tending to show the intent of the testator to make them equal in the distribution of his estate, which evidence was sought to be met by evidence that the testator, upon learning what Robert alleged to be true, but which was denied, that his daughter, Mrs. Lee, had been equally interested with Robert in an adventure that had proved disastrous, and in the closing up of which about $9,000 had been paid by the testator and charged 'to Robert as a part of his portion, had determined to deduct one-half of this amount from the portion of Mrs. Lee. The evidence of this consisted mainly of declarations of the testator, as proved upon the trial. The evidence was, that the division of the estate between the two -children was unequal in amount and value; and in addition to the inequality of value, the share or portion of Mrs. Lee was put in the hands of Robert as trustee, and so limited as to detract from its value to Mrs. Lee, and directly and indirectly to inure to the benefit of Robert. Robert L. Dill was offered as a witness and objected to as incompetent, and the objection overruled, and he was sworn and examined as a witness. In the course of his examination he was permitted to testify, under objections made by the appellant, to conversations with thé testator, material and relevant to the issues, and tending to establish the will. The jury answered both questions submitted to them in favor of the respondent, and the judge before whom the issues were tried denied a motion for a new trial; and from that order Mrs. Lee now appealed, asking a new trial upon a case containing exceptions to the ruling and decision, and to the charge of the judge.
    
      Daniel Pratt, J. S. Barrett, and H. C. Leavenworth, for the appellant.
    
      Amasa J. Parker, Finlay M. King, and John P. Hulberi, for the respondent.
    
      
       To the contrary, McCray a. McCray, 12 Ante, 1.
    
   Allen, P. J.

There can be no doubt that the division of the estate in controversy, by the will propounded for probate, is grossly unequal. Mrs. Lee will be greatly the gainer by securing a decision according to the laws of descent and distribution, while the respondent Dill will be to the same' amount benefited pecuniarily by establishing the will. It is in effect a contest for the property of the decedent by the appellant, as heir-at-law and next of kin, and by the respondent as legatee and the devisee. The former claims by descent and the latter by purchase. The appellant succeeds as heir-at-law and next of kin, unless the respondent can show a better title from the deceased, either by grant or devise; and in either case it is in hostility to the successor by representation to the last owner, and depends for its validity upon the acts of such owner in his lifetime.

By the will, the respondent seeks to overthrow the title of the heirs-at-law, and by the alleged testamentary act of the ancestor to devest them of the estate which would otherwise have descended to and vested in them, and transfer the same to the devisees and legatees named in the will.

The respondent, in propounding this will for probate, asserts his claim under it, and tenders an issue upon his title, and the appellant is a necessary party to the proceedings, and can only assert her title as heir-at-law and next of kin by contesting the probate; and the question, in substance and effect, is between, these two claimants, whether the one or the other is best entitled, the one by descent or the other by purchase. At common law, Dill would not have been a competent witness upon the trial of the issues. His relation to the controversy as a party would have excluded him, aside from his pecuniary interest in the result; and his interest as devisee would have rendered him incompetent, if he had not been a party to the record. The question made upon his examination depended upon the construction of section 399 of the Code, as amended in 1860. By that section he was a competent witness in his own behalf; but while he was made competent as a witness, he was subject to the general exception of the section as it then stood, that a party should not be examined against parties who were representatives of a deceased person, in respect to any transaction had personally between the deceased person and the witness. The objection to his competency was, therefore, properly overruled. But he was permitted to testify, notwithstanding the objection and exception of the appellant to transactions and conversations had personally between the deceased and himself.

It was a material inquiry whether the will was that of the alleged testator, or of the beneficiary, Eobert L. Dill; and the circumstances under which it was prepared and executed were suspicious. Without referring in detail to the circumstances which made the evidence objected to material and necessary on the part of Dill, it is sufficient to say that it was regarded by him, and was in truth, important for him to prove that the will was prepared from and in accordance with .directions and instructions proceeding from the testator. Without such evidence, it is not probable that a verdict could have been obtained, affirming the will as the will of the deceased. The title of the claimant (Dill) was under the will, and all the negotiations and preparations, and all the conversations between him and his father leading to and resulting in the will, were parts of the res gestee, and entered into and made a part of the principal transactions by which Mrs. Lee was to be deprived of her rights as heir-at-law and next of kin; and it follows that every part of this transaction, and every material circumstance, must be proved by competent testimony. The party was allowed to .testify that his ■ father knew the contents of the will, and to follow it up by proof of what took place between himself and. his father, in personal interviews between them touching the will, and preparatory to its being drawn; and that in such interviews the deceased told the witness hpw he should make it, and that he should make it as it was afterwards made, and that the provisions concerning Mrs. Lee originated with and were urged by the testator against the wishes and requests of the witness. If Mrs. Lee in this contest was the representative of her deceased father, the admission of this evidence from the party to the proceeding in his own behalf was erroneous.

Words and phrases in statutes must be deemed to have been used in their usual and proper sense, unless it appears from the context or otherwise that they have been used in a technical and restricted sense. A representative is one that stands in the place of another as heir, or in the right of succeeding to the estate of inheritance—one who takes by representation (Webster's Die.); one who occupies another’s place, and succeeds to his rights and liabilities. Executors and administrators represent, in all matters in which the personal estate is concerned, the person of the testator or intestate, as the heir does that of the ancestor. (Russ. Law Dic.; 2 Steph. Com., 243.) Bepresentatives of a deceased person are real or personal, the former being the heirs-at-law, and the latter being ordinarily the executors or administrators. The term representatives” includes both classes. When the personal representatives at law are intended in a statute, they are so named; and there is no expression of an intent to limit the protection and benefit of this exception to the personal representatives. The real representatives are as much within the reason of this rule as the personal representatives, and there is as much reason for protecting the one class as the other. As to the personalty, executors and administrators, although the usual, are not the sole representatives of a deceased party. The next of kin, when they succeed to the personalty, whether through the intervention of executors or administrators, or in any other way, become the representatives quoad the effects distributed, and are within the protection of the statute. Other statutes recognize and provide for next of kin under the general term of representatives (2 Rev. Stat., 96); and in wills and settlements, the terms representatives and legal representatives are frequently held to mean heirs and next of kin, and not executors or administrators. (Barnes a. Otley, 1 M. & R., 465; Robinson a. Smith, 6 Sim., 47; Walter a. Merckin, Ib., 148; Colton a. Colton, 2 Rear, 67; Long a. Blackall, 3 Ves., 486.) The case of McCray a. McCray (12 Abbotts’ Pr., 1) is cited as holding a contrary doctrine, and as excluding this case from the exception in the statute, making parties to the proceedings in Surrogates’ Courts witnesses in their own behalf. That was decided by a divided court, and was a case of peculiar hardship (30 Barb., 633); and the learned judge by whom the prevailing opinion was delivered did not evidently give the case that careful consideration which he is accustomed to bestow, and which deservedly entitles his opinion to weight. I am quite certain, that, upon a reconsideration, he will be of the opinion that there is no reason in the language of the act for the exception, or in the situation and condition of the parties, authorizing a distinction between the different classes of' representatives of a deceased person in construing, applying, and carrying into effect this provision of law.

I am satisfied that it was error to admit the evidence. The verdict must be set aside and a new trial granted.

Mullen and Mokgan, JJ., concurred.

Bacon, J., dissented.  