
    George W. Painton, as Committee of the Person and Estate of Henry Cavanaugh, Respondent, v. Annie B. Cavanaugh, Individually and as Executrix, etc., of Patrick Cavanaugh, Deceased, Appellant, Impleaded with Annie R. Painton and Others, Defendants.
    Third Department,
    May 8, 1912.
    Will — deed — proof not establishing lack of testamentary capacity — evidence as to cause of death — hypothetical question.
    In an action brought pursuant to the provisions of section 2653a of the Code of .Civil Procedure to determine the validity of the probate of a Will, and also to set aside two deeds upon the ground that at the time of the execution of the will and deeds the deceased was mentally incompetent to execute the same, the court dismissed the complaint as to one deed, but submitted to the jury the questions as to whether the will and other deed were the act and deed of the deceased, to which the jury answered in the negative.
    
      Held, that the verdict of the jury should have been set aside as against the weight of evidence.
    The certificate of a city health department is inadmissible in such an action to prove the causes of death.
    A hypothetical question can be founded upon legal evidence only.
    
      A ppm at, by the defendant, Annie B. Cavanaugh, individually and as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rennselaer on the 23d day of January, 1911, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, certain questions having been submitted to the jury, and also from an order entered in said clerk’s office on the 20th day of February, 1911, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Thomas F. Galvin [John B. Holmes of counsel], for the appellant.
    
      Peck & Behan [John H. Gleason of counsel], for the' respondent.
   Lyon, J.:

This action .was brought pursuant to the provisions of section 2653a of the Code of Civil Procedure to determine the validity of the probate of the will, executed in February, 1906, of Patrick Cavanaugh, who died in November of that year, and also to set aside two deeds, executed in February, 1902, and March, 1906, respectively, upon the ground that at the time of the execution of the will and deeds Patrick Cavanaugh was mentally incompetent to execute the same. At the close of the trial the court dismissed the complaint as to the deed executed in 1902, but submitted to the jury the questions as to whether the will and the deed of 1906 were the act and deed of Patrick Cavanaugh, to which the jury answered in the negative, which decision the court adopted and embraced in his findings.' ■ While much evidence was given as to the acts and declarations of Patrick Cavanaugh indicating his mental condition, yet in our opinion the verdict was not warranted by the evidence and ■ should have been set aside as against the weight of evidence and a new trial granted. Furthermore, upon the trial the plaintiff offered in evidence an authenticated certificate from the health department of the city of Troy stating the name, age, place of death and cause of death of Patrick Cavanaugh, to the admission of which defendant’s attorney objected upon the ground that such certificate was incompetent, improper, inadmissible and hearsay, and that the statements therein as to the cause of death could not properly be received in evidence, which objection was overruled and defendant duly excepted. This certificate stated the “ chief cause of death Arterio Fibrosis,” “other causes Apoplexy,” and was the only evidence offered upon the trial as to the causes of death. Embraced in the hypothetical question asked by plaintiff’s ' attorney of the medical experts called by him, was the cause of death as so stated in such certificate, to which question objection was specifically made that “there is no legal proof of the cause of death,” which objection was overruled, exception taken and the question answered.

Evidently the certificate of death was offered for the purposes of proving the causes' of death to have been arterio fibrosis and apoplexy. It was inadmissible for that purpose. (Beglin v. Metropolitan Life Ins. Co., 173 N. Y. 374.)

As the question at issue was the mental condition of Patrick Cavanaugh, this proof as to the cause of his death doubtless had an important bearing with the jury. One of the medical experts called by the plaintiff testified that in answering the hypothetical question he took into consideration all- the facts therein stated and based his opinion solely on those facts. No citation .of authority is necessary to the effect that a hypothetical question can be founded upon legal evidence only.

For the reasons above stated the judgment and the order denying the motion for a new trial must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. .  