
    In the Matter of the Probate of the Codicil of Abraham Dates, deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Will—Probate—Evidence of handwriting of witness.
    One of the w tnesses to a codicil left home and was absent at the trial. It was shown that contestant’s attorney loaned him some money; told him he would be attached if he did not return, and subpoenaed him; that the witness said he was going gunning and would be hack in time for the trial, and that he was then out of the state. Held, that no inference was possible but that he was induced to go away by the contestants, and that proof of his handwriting was, therefore, properly received.
    3. Same—Former adjudication.
    A decree rejecting a will or codicil is not binding on a person who was not cited to attend the hearing on which such decree was rendered.
    3. Same—Testamentary capacity.
    Testator stated to his attorney the contents of his will and told him he had heard bad accounts of his son and wished to change his will so as to cut down the gift to him to a life estate, and make S'milar changes as to his daughters. The attorney recommended a codicil, which was drawn and executed. The reports as to the son were well founded. Held, that testator was competent, and the decree admitting the codicil to probate should be sustained.
    Appeal from decree admitting to probate a codicil to the will of testator.
    The proceeding was brought by the guardian of Jennie D. Vanderwater, who was born after testator’s death.
    In a prior proceeding instituted jn 1882, the will was admitted to probate and the codicil rejected.
    The following is the opinion of the surrogate:
    Hufcut, S.—In the year 1882 a proceeding appears to have been had in this court upon the petition of the executors of the Dates will, that a codicil thereto dated September, 26, 1882, be admitted to probate. The testimony taken upon that proceeding shows that neither of the subscribing witnesses were asked as to the competency of the testator to make the codicil at the time of its execution; the codicil changed the will in that children of the testator were by the codicil to have the use only of the testator’s lands, and upon the death of the children the lands were to go .to the testator’s grandchildren. The petitioner is the general guardian of Jennie D. Vanderwater, an infant grandchild of Dates, the testator, and bom subsequently to the above mentioned proceedings, in the year 1882. An examination of the proceedings and evidence upon that hearing shows an apparent hostility to the proof of the codicil by all the parties then concerned, and that no one asked of the principal witnesses such questions as might prove such codicil as a valid adjunct to said will, and there was a failure of proof. This former proceeding and its evidence were put into this case by the contestants, they offering the same, and it not being objected to, it was received.
    Upon this present contest before me the subscribing witness, J. S. Van Cleef, was sworn and given an exhaustive examination by each party to the contest. The evidence of this witness shows that there can be no reasonable doubt left of the fact that Abraham Dates was on the 26th day of September, 1882 (the time said codicil was made), of sound mind and memory, and not under any restraint, and that he then executed said codicil. In this Mr. Van Cleef is fully corroborated by other witnesses; in fact the whole case runs that way, as all the witnesses concur that he afterwards talked about having made said codicil, and that he knew what its provisions were.
    The contestants made demand that Eli Masten, the other subscribing witness, be produced for examination in this proceeding,, and object to the admission to probate of such paper as a codicil to the will because the proponents have not so produced him.
    The evidence shows that it is not the proponents’ fault that they have not produced him; that they could not with due diligence find the absent witness within this state or elsewhere. Upon the last hearing a letter was produced from said witness from Linden, New Jersey, but the examination of Mr. Frank L. Akerley, one of the attorneys for the contestants, shows that he had good knowledge of the departure of the witness from his home in Pleasant Valley, a short time before this trial was to begin, that he, Akerley, went with him to New York, loaned him $25 here before he left, and let him have more in New York; he says he let Masten have a little less than $100. From Mr. Akerley’s former connection with this case, and his evidence given on this trial, it is plain that the absence of Masten from his home at this time was at the instance, and was in the main procured by the said attorney for the contestants herein, to have such witness so absent himself and stay until this trial was over. The paper so produced as a, codicil to the last will and testament of said Dates is well proven, and the statutory requirements as to proof have been fully complied with under these circumstances, the witness Masten was not here nor procurable by the proponents, but the contestant’s attorney having taken this way of managing his client’s case, procuring the absence of the witness, the client cannot complain that he is not here, and the demand that he must be produced for examination is without avail; the paper produced having been satisfactorily proven by lawful evidence, the same should be admitted to-probate as a codicil to the will of Abraham Dates, and the proponents shall have costs of this proceeding.
    
      Frank L. Akerley, for app’lts; Ransom Baker, for resp’t.
   Barnard, P. J.

On the 4th of December, 1889, a citation to the parties interested in the estate of Abraham Dates was returnable. The parties appeared. It was proven that Eli Masten, one of the witnesses to the codicil, left his employment at Pleasant Valley in Dutchess county, without assigning any reason. He obtained the permission of his employer to go away if he got a substitute; saying that he was going to “ take a little trip around.” It was further proven that the attorney for the contestants met the witness Masten in New York by arrangement, and “loaned him a little money,” a trifle under $100. The witness told the attorney thas he was going gunning, and would be back on the 4th of December for the Dates case; and was told by the attorney for contestants that he would be attached if he did not return; and he was subpoenaed by contestants. From, this evidence no other inference is possible but that the witness was induced to go away by the contestants, and the surrogate therefore properly received proof of handwriting of the witness. He was out of the state. “ I have known him (swears the attorney) to go to Connecticut ” on a vacation, and it was this vacation that he was induced to take at this time. Section 2620, therefore, authorized the taking of proof of “the handwriting of the testator and of the subscribing witnesses.”

It appeared that the testator left a will and codicil. By the will he gave his children absolutely. By the codicil he gave only a life estate with remainder to the children of the devisee. The petitioner was not cited to attend the proof of the will and codicil. She is therefore not bound by the former adjudication. Section 2627, Code.

The testator was competent. One of the witnesses was the lawyer who drew the will and codicil. There is no question made as to capacity at the time the will was .executed. There can be none as to the capacity of the testator at. the execution of the codicil. The testator sent for the lawyer. He stated to him generally the contents of the will; told him that he had heard bad reports of the conduct of his son and wished him to make a change in his will so as to cut down the gift to the son to a life estate and also to make the same change in regard to his two danghters. The lawyer recommended a codicil, which was drawn and executed. There is no sufficient evidence to rebut the plain and convincing testimony of the attorney, J. Spencer Yan Gleef, who drew and attended to the execution of the instrument. The change was suggested by the testator and was at once drawn and executed. The reports as to the son which he gave as a reason for the change were well founded and the testator’s intentions ought to be carried out. The decree of the surrogate admitting the codicil to ' probate should be affirmed, with costs against the appellants personally.

Dykman and Pratt, JJ., concur.  