
    In the Matter of the Probate of the Alleged Last Will and Testament of Otis Van Dawalker. Earl W. Van Dawalker, Appellant; Alma M. Sanders, Respondent.
    
      Declaration of beneficiaries under a will, as do the competency of the decedent — they an'e incompetent on an application for its probate.
    
    Where a will is attacked on the ground that the testator was incompetent to make the same, different admissions or declarations as to the mental condition of the testator, made respectively hy each one of the persons who would take as tenants in common under the will, at different times and in the absence .of the other tenants in common, are inadmissible.
    Appeal hy the proponent, Earl W. Van Dawalker, from a decree of the Surrogate’s Court of the county of Oneida, entered in the office of said surrogate on the 3d day of January, 1901, refusing to admit to probate a paper purporting to be the last will and testament of Otis Van Dawalker, deceased, on the ground that the testator was incompetent to make the same.
    
      P. 3. Fitzgerald, for the appellant.
    
      Charles li. Coville, for the respondent.
   Williams, Jl:

The decree appealed from should be reversed and a trial ordered before a jury in the Supreme Court. The contest was a lengthy one. Forty-five witnesses were sworn during the original hearing, and the matter having been submitted, the surrogate wrote a very satisfactory opinion, considering the law and the facts, and arrived at the conclusion that the testator was competent to make the will, and that it should be admitted to probate. We have examined the. evidence given on such hearing, and agree that the conclusion arrived at by the surrogate, as stated in such opinion, was abundantly justified by the evidence.' We do not desire to add anything to the reasons assigned by the surrogate for such conclusion. Before the entry of a decree, a motion was made in behalf of the contestant to reopen the contest and permit additional evidence to be given. That motion was granted, and a rehearing was had and new evidence was given, and thereafter the surrogate, upon the entire evidence before him, reversed his former conclusion, and made the decree appealed from, refusing to admit the will to probate on the ground that the testator was not competent to make the will. The new evidence given on the rehearing, and upon which the surrogate relied in reversing the conclusion at first reached by him, consisted mainly of admissions made by the several persons beneficially interested under the will, as to the mental condition of the testator.

All this evidence was objected to, but was held by the surrogate to be competent, and was received and considered in the case. We are of the opinion the evidence so received was incompetent, and even if it was admissible, it was not of sufficient importance to justify the surrogate in changing his former opinion and ref using probate to the will. It is well settled that evidence of such admissions or declarations by persons not jointly interested under a will are not admissible and cannot be considered by the surrogate at all. (Matter of Kennedy, 167 N. Y. 163.)

In this case O’Beiek, J. (at p. 177), said: The general doctrine is doubtless correct that the admissions or declarations of a party to the record may be taken as against himself or another party having a joint interest with him, but this rule can have no application to a proceeding to prove a will where other parties are interested in the estate as tenants in common. In this case the admissions or declarations of the nephew could not bind the sister-, and, since upon proof of a will there can be but one decree, either of rejection or of probate, the declarations of one of the parties cannot, from the very nature of the case, be received as evidence without prejudice to the rights of the other. One tenant in common cannot admit away the rights of his cotenant. Since the will could not have been admitted as to the sister and rejected as to the nephew, the admissions or declarations of the latter were not admissible.” This rule is applicable to the case we are considering. The 2>ersons whose admissions or declarations were given in evidence were not joint tenants, but tenants in common of the property dis230sed of under the will, and, therefore, their admissions or declarations were improperly admitted in evidence. It will not do to say they were so admissible because the admissions or declarations of all the persons so interested were given in evidence. They were not made in the presence of all and assented to by all, nor were they the same admissions or declarations made by the several parties at different times. . They were different admissions or declarations, and it is merely claimed that they all tended towards one and the same result or conclusion, viz., the weakness of mind and mental incapacity of the testator. The admission of the evidence-cannot be sustained upon such a theory. The admissions or declarations of each separate person, made separate and apart from the other persons interested under the will, were inadmissible as to such other persons, and were, therefore, inadmissible for any purpose.

Moreover, we are unable to see how these admissions or declarations could have induced the surrogate to change his well-considered decision already made. They were at best the opinions of non experts, not given under oath, as to the mental condition of the tes. tator, and ought not to. have outweighed the considerations referred to in the surrogate’s opinion already handed down.

The decree appealed from should be reversed and a new trial granted, and, inasmuch as the reversal is founded upon a question of fact, such new. trial must be had at a Trial Term of the Supreme Court under section 2588, Code Civil Procedure, costs of appeal to appellant to abide event.

All concurred.

Decree of Surrogate’s Court reversed and new trial ordered upon the' issue between the parties before a jury at a Trial Term of the Supreme Court to be held in the county of Oneida, with costs to the appellant to abide events the form of the order and questions to be settled by and before Justice Williams upon ffve days’ notice.  