
    William N. Richie, Appellant, v. Winifred K. Shepard and James A. Cameron, as Executors, etc., of Lottie N. Palmer, Deceased, Respondents.
    Second Department,
    July 25, 1913.
    Decedent’s estate — action against administrators upon promissory-notes made by decedent — defense of mental incapacity and undue influence — presumption of mental incapacity from incompetency proceedings — evidence incompetent under section 889 of the Code of Civil Procedure — failure to object—pleading.
    In an action by the payee to recover on two promissory notes alleged to have been made by the defendant’s intestate, the answer alleged undue influence on the part of the plaintiff who was the decedent’s pastor and spiritual adviser at the time of the alleged making of the notes. It appeared that about two months after the date of the last note the plaintiff presented a petition asking for an inquisition into the mental competency of the decedent, in which he set forth that during the past eight years she had been unable to manage her affairs. It was found by the commissioners and a jury that the decedent was incompetent and had been incompetent during such time, and the plaintiff was appointed committee.
    Held, that the finding of the jury on the inquisition was presumptive evidence of the decedent’s ineompetency at the time he made the notes;
    That the plaintiff has failed to meet the presumption and a judgment for the defendant should be affirmed.
    The erroneous admission, contrary to section 829 of the Code of Civil Procedure, of a deposition of a legatee under the will of the decedent, as to her mental condition during the time in question, is unavailing, where no formal objection was made on that ground.
    The record in the incompetency proceedings was admissible in evidence, although not specially pleaded.
    Burr, J., dissented.
    Appeal by the plaintiff, William N. Richie, frqm a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 6th day of November, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1912, denying plaintiff’s motion for a new trial.
    
      Adolph Ruger, for the appellant.
    
      Burt D. Whedon, for the respondents.
   Carr, J.:

The plaintiff in this action sued the defendants, who are the executors of the last will of Lottie N. Palmer, deceased, to recover on two promissory notes, alleged to have been made by the decedent in favor of the plaintiff, each in the sum of $4,000, payable six months after date, and dated respectively June 11,1901, and August 23, 1909. The answer set up various defenses, together with a denial of the making of the notes by the decedent. There was no proof of any consideration for the notes except such as may rest upon the fact that each note contained the words “value received.” A defense was set up to each note that at the time of the alleged making thereof the decedent was an old woman who was wholly incompetent to manage her business affairs, that she was easily induced to part with her money and property, and that said notes had been procured from her by undue influence on the part of the plaintiff, who was her pastor and spiritual adviser at the time of the alleged making of the notes in question. It appears that on October 7, .1909, about two months after the date of the last note, the plaintiff presented a petition to the Supreme Court in Kings county asking for an inquisition into the mental competency of the deceased, in which petition he set forth that during the past eight years she had been unable to manage her affairs, and that designing persons had taken from her at least the sum of $20,000. On this petition an order was made directing the taking of an inquisition before three commissioners and a jury. An inquisition was taken,' in which it was found by the commissioners and the jury that the decedent was incompetent to manage her affairs, and that such incompetency dated from January 1,1902. This inquisition was confirmed, and the petitioner, who is the plaintiff here, was appointed as the committee of the person and property of the alleged incompetent. After her death he turns up with these notes, and seeks to enforce them against the estate, although they were given within the period “ overreached ” by the inquisition in the proceeding which he himself initiated and carried to completion, and which if paid would practically exhaust the estate. The finding of the jury on this inquisition is presumptive evidence of the decedent’s incompetency at the time of the making of the notes upon which plaintiff now sues. (Van Deusen v. Sweet, 51 N. Y. 378, 386.) In addition to this, we have the facts set forth by plaintiff in his petition as aforesaid, that he was the spiritual adviser of this very old and mentally weak woman. On the trial he offered no evidence beyond an attempt to prove the signature of the decedent and thus establish the making of the notes. The jury found a verdict for the defendants. On this appeal it is argued that certain prejudicial errors were committed on the trial which require a reversal of the judgment. The defendants offered in evidence the deposition of one Mrs. Hunter, which had been taken out of court, in the presence of the attorney for plaintiff, the witness being ill. Mrs. Hunter was a legatee under the will of the testatrix. She was examined as to the physical and mental condition of the decedent during the years in question. It is now urged that it was error to permit this evidence, as she was an interested party, and, therefore, her testimony was incompetent under section 829 of the Code. Ho formal objection was made to her testimony on this ground, hence such objection was unavailing, according to settled rules. Some of the questions put to this witness as to the mental condition of the decedent at the time the notes were made were too broad, as the witness was á lay person; but we do not consider these technical errors as presenting reversible error, for even if the entire testimony of this witness be disregarded, there was a complete failure of proof on the part of the plaintiff to meet the presumption raised by the inquisition. It is argued further that it was error to allow defendants to offer in evidence the record in the incompetency proceedings, as the same were not specifically pleaded in the answer. As before stated, the answer did set up that decedent was incompetent to attend to her affairs at the time of the making of these notes, and I think that the incompetency proceedings, which had been initiated and carried out by the plaintiff in this action, were admissible against bim on that issue, without being specifically pleaded. In any event, there is no authority to the contrary presented by the appellant in his brief.

The judgment and order should be affirmed, with costs.

Jenks, P. J., Thomas and Putnam, JJ., concurred; Burr, J., dissented upon the ground that the testimony appearing at folios 77 to 84 inclusive was incompetent.

Judgment and order affirmed, with costs.  