
    In the Matter of Probate of Will of Margaret Hannah.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed September 20, 1887.)
    
    Appeals—General term from surrogate’s court—Section 3586, Code Civ. Pro.—Taking further testimony.
    The power given by section 3586, Code Civ. Pro., to appellate court on appeal from surrogate’s decision to receive further testimony should he cautiously used. It practically opens the case and gives a rehearing on new evidence before an appellate tribunal. If one side is allowed to introduce new evidence, it would seem unjust not to permit the other side to do the same. Unless the evidence, which is desired to be produced, seems of sufficient importance to justify a rehearing, the court will not exercise the power given it by the section.
    
      Lyman H. Nortfmp, for app’lt; Henry T. Torrey, for resp’t.
   Learned, P. J.

Probate of this will was refused and am appeal has been taken by one of the legatees. This appellant now moves, under section 2586 of the Code, that the argument be postponed and that the testimony of certain witnesses be taken under a commission.

Probate was refused on the ground of the mental incapacity of the testatrix. On the hearing, among other things, testimony was given by the contestant, who was the only daughter of the testatrix, that there had been little or no correspondence for many years between the testatrix and certain relatives in Scotland, who were to be legatees and devisees in case the daughter of the testatrix should die without issue. The object of this evidence was plainly to indicate some weakness of mind in the testatrix.

Direct evidence was given, on the hearing, by expert and other testimony, tending to show the state of mind of the testatrix.

The .evidence which the appellant (who is one of these relatives in Scotland) now desires to produce would tend to show that there had been 'correspondence, from time to time, between the testatrix and her family (including the contestant) and these relatives in Scotland.

It is very plain that the power given in section 258© should be cautiously used. It practically opens the case, and gives a re-hearing on new evidence before an appellate tribunal Of course, if one side is allowed to introduce; new evidence, it would seem unjust not to permit the other side to do the same. In the present case, since the only-real issue is the competency of the testatrix, if the proposed new evidence bears (as it must be thought to bear) on thafe point, it would seem necessary, if the appellants motion were granted, to permit the respondent to give any other evidence bearing on the matter in issue, viz.: the competency of the testatrix. And if the respondents desired to produce witnesses before us, or before a referee, such would seem to be the respondents' right. ■ And it is evident that there would be much difficulty in this.

But again, the evidence which it is desired to produce does not seem to be of such importance as to justify our exercise of the power given by this section.

Whether the testatrix and her family were, or were not, in occasional correspondence with her relatives in Scotland, has little bearing on her competency. There is nothing ■ strange or unnatural in the will. The daughter of the testatrix had been married some time, and had no children. The testatrix gave a life estate to her daughter; remainder to the daughter’s children, if she had any; if not, to these nephews, etc., in Scotland. Even if it were proved that the testatrix had been very intimate with these relatives in Scotland, such proof would have but very slight weight in showing her testamentary capacity.

There was no question of undue influence; on that the degree of intimacy might have had some bearing.

If any argument was urged from the terms of the will against the competency of the testatrix, it must have relied on the circumstances that she gave only a life estate to her daughter instead of a fee. And it would be of little consequence whether the relatives to whom she gave the fee, in case the daughter had no issue, were persons with whom she was intimate or not. They were her relatives, and if she did not desire that her daughter should have the fee, she would naturally give it to collateral relatives. Whether she knew them well or not is not very material.

Motion denied.

Landon and Williams, JJ., concur.  