
    In the Matter of the Probate of the Will of Lillian H. White, Deceased. Walter Haydock, Appellant; John Haydock et al., Respondents.
    Argued October 11, 1956;
    decided February 28, 1957.
    
      
      Raymond A. Carter, Samuel S. Duryee and Gilbert E. Dwyer for appellant.
    
      
      Frank Delaney for Aimee H. Gerber and others, respondents.
   Dye, J.

Lillian Haydock White, a childless widow, aged 78, died December 20, 1952, a resident of New York, leaving a purported last will and testament dated April 9, 1929 by which she attempted to dispose of her true estate and to exercise a power of appointment granted to her by the will of her father, John Haydock. A codicil thereto dated September 13, 1929, containing no dispositive provisions, was “ solely for the purpose of ratifying and confirming ’ ’ the April 9th instrument and ‘ ‘ revoking any other purported Will ’ ’ executed subsequently thereto. Following a trial by jury, both instruments were denied probate on the ground that the decedent was not of sound and disposing mind and memory and competent at the time of making. The Appellate Division has unanimously affirmed the Surrogate’s order and decree without opinion and has granted leave to appeal to this court, certifying that a question of law is involved which we ought to review. Simply stated, the question is whether the Surrogate erred in admitting into evidence, on the issue of testamentary capacity, certain testimony given at a prior lunacy proceeding by two witnesses now deceased. In so ruling, the Surrogate relied on section 348 of the Civil Practice Act which provides in substance that the testimony of a deceased witness given at a former trial or hearing may be received in evidence at a subsequent trial or hearing “ of the same subject-matter in the same or another action or special proceeding* between the same parties to snch former trial”. Hughes v. Jones (116 N. Y. 67, 73), relied on by the appellants, is not authority to the contrary for it was expressly held that “ the proceeding’s in lunacy are presumptive [and thus admissible], but not conclusive evidence of a want of capacity ’ ’.

Before proceeding* to the statute, it should be noted by way of historical interest that Mrs. White was widowed on the death of her husband in 1927. She was then 53 years of age. Shortly thereafter she developed mental difficulty. She became erratic and distraught, indulging in abnormal behavior habits and conduct, including an excessive use of alcohol. Her condition became so bad that on several occasions between 1927 and 1929 she sought treatment as a voluntary patient in the Charles B. Towns Memorial Hospital, a licensed mental sanitarium in New York City. However, this was to no avail. She became progressively worse until she was no longer able to care for herself or her affairs, amounting in effect to a state of near-collapse necessitating institutional care, with the result that on September 24, 1929 she was admitted to Stamford Hall as a voluntary patient, where she remained until released by death 23 years later.

In November, 1929 her brother, John Haydock, Jr., commenced lunacy proceedings in the States of Connecticut — she being in Stamford Hall as a voluntary patient — and in New York, that being her residence and the situs of the property. In both proceedings, her sister, Aimee Haydock Gerber, and her two nephews, John and Walter Haydock, the sons of the petitioner, and the proponents herein, were named as respondents, none of whom opposed the prayer of the petition. At the hearing in the New York proceeding the petitioner, John Hay-dock, Jr., and Dr. Frank Wade Robertson, the head of Stamford Hall and previously consulting physician at Manhattan State Hospital, testified to an undisputed state of facts, repetition of which is unnecessary to this opinion, from which it conclusively appears that at the time and for a period of two years prior thereto, Mrs. White was suffering from lunacy attributable to serious mental disease, as alleged in the petition. Concededly, such proof was properly admissible at the time under the practice then existing. While the history of alcoholism might be used as a basis for commitment (Civ. Prac. Act, § 1356), the fact of the matter is that the commitment was sought on the ground of serious mental disease and the sheriff’s jury so found. The correctness of the allegations and the verdict are fully demonstrated by the circumstance that, after commitment, the decedent never again used alcohol in any form, yet she never regained a mental capacity warranting her release. The sheriff’s jury’s verdict was rendered January 22, 1930, adjudging Mrs. White to be insane, was then entered in Supreme Court, New York County, and, until her death in December, 1952 or her incarceration in Stamford Hall, was not in any way disturbed. The lunacy proceeding in Connecticut terminated in a decree of insanity.

The competency and sufficiency of the testimony of John Haydock and Dr. Eobertson to sustain the prior decree of insanity is nowhere challenged. Since it related to and included the period when the alleged will and its codicil were purportedly made, no valid reason exists for denying the competency and probative effect at the subsequent trial on the issue of testamentary capacity. Section 348 specifically authorizes the use of such testimony when the subject matter and the parties are the same. It is a simple concept well grounded in the common law (Shaw v. New York El. R. R. Co., 187 N. Y. 186; Jackson ex dem. Bates v. Lawson, 15 Johns. 539, 544; for reasons ex necessitate Jackson ex dem. Potter & Calvin v. Bailey, 2 Johns. 17) and long embedded in our statutes (Code Civ. Pro., § 830, added by L. 1879, ch. 542, as amd. by L. 1893, ch. 595, and L. 1899, ch. 352).

True, the purpose underlying a lunacy proceeding is technically different from that underlying a probate proceeding, but such difference is not one of substance, since the resulting decree in either event depends on the fact of mental incompetency— in the one instance, a lack of capacity to manage one’s affairs — and, in the other, to make a valid last will and testament. When so considered, it cannot reasonably be said that the requirement of the statute of ‘ ‘ the same subject-matter ” has not been fulfilled.

The statute also contemplates the use of such prior testimony in subsequent controversies “ between the same parties to such former trial or hearing ”, which requirement the appellant contends has not been fulfilled in this instance because the interests of the parties are not the same; in other words, the parties-respondent in the lunacy proceeding were brought in because of their relationship to the incompetent, while in this probate proceeding they are here because of their prospective interests in the decedent’s estate. There is a distinction without a difference. All parties to this probate proceeding were duly served with process as well as notice of the later confirmation proceedings. Nothing turns on the circumstance that they did not cross-examine the witnesses at the lunacy proceeding. Admissibility of such testimony does not depend on the actual act of cross-examination so long as it appears that the opportunity to cross-examine was available. A failure to exercise such right is deemed a waiver thereof (Bradley v. Mirick, 91 N. Y. 293; Richardson on Evidence, 7th ed., § 344). The case of Young v. Valentine (177 N. Y. 347) relied on by the appellant is not to the contrary. There it was held that no error was committed in rejection of a portion of a trial deposition sought to be introduced because it had been stricken from the record, thus affording no right or opportunity to explain it on cross-examination in relation thereto. In this state of the record, the appellant had full opportunity to avail himself of his right to cross-examine the witnesses but elected not to do so, probably because he was seeking the same result as the petitioner, namely, the establishment of Mrs. White’s mental incapacity. By such inaction, he must be deemed to have waived his right.

The separate and further objection to Dr. Robertson’s testimony on the ground of privilege was also properly overruled as being within the waiver provisions of section 354 of the Civil Practice Act (Dean v. Halliburton, 241 N. Y. 354; Matter of Coddington, 307 N. Y. 181).

The order appealed from should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Van Voorhis, J.

(dissenting). The will and codicil of testatrix have been denied probate by an adjudication of mental incompetency. The will was executed April 9, 1929, the codicil September 13, 1929. The only evidence in the record on which a finding of ineompetency could be based consists of the testimony of two witnesses, now deceased, in a proceeding in 1930 for the appointment of a committee. That proceeding was conducted, be it noted, in the year following the year in which testatrix executed the will and codicil. These witnesses were her brother, John Haydock, and a Dr. Robertson, who was the supervising physician of the private sanitarium to which she had recently been admitted. The question here is whether their testimony can be received under section 348 of the Civil Practice Act. That depends, in turn, upon whether the subject matter of the proceeding for the appointment of the committee in 1930 was the same as the subject matter of this will contest tried in 1954, and whether the parties were the same. ‘ ‘ The common law recognized the right * * * to introduce the testimony given at the former trial or hearing where the second proceeding involves the same parties or their privies and the same issues, this being the best evidence which such case admits. The fundamental reason for permitting evidence of a witness given at a former trial, who is now not available as a witness, to be read in evidence is that the parties had both the right and opportunity of cross-examination at the time such testimony was offered.” (6 Carmody-Wait on New York Practice, § 32, pp. 472-473; Young v. Valentine, 177 N. Y. 347.) This right became limited by section 830 of the former Code of Civil Procedure in 1879, which was amended in 1899. “ Prior to the amendment of 1899, the right to read the testimony of a deceased party or witness taken on the former trial was confined, by the section, to a new trial or hearing of the same action or special proceeding in which the testimony was given. (People ex rel. Byrne v. Brugman, 3 App. Div. 156.) Its scope was enlarged by the amendment of 1899 to extend the right to resort to such testimony to another and independent action or special proceeding between the same parties, where the subject-matter of the new action or proceeding was identical with that in which the testimony of the deceased party or witness was given.” (Deering v. Schreyer, 88 App. Div. 457, 463.) Section 830 of the Code of Civil Procedure, as thus amended, has been carried forward into section 348 of the Civil Practice Act. The reason for the introduction of the verbiage that the subject-matter ” shall be the same, was not to change the rule that the issues must be the same so that the incentive shall have existed to cross-examine the witness for the same objective, but to escape the technicality which section 830 of the Code of Civil Procedure had introduced in requiring that the former testimony should have been given in the same action or special proceeding. It no longer has to he on the same canse of action. After the amendment of 1899, the former testimony might have been given in another and independent action or special proceeding provided that “ the subject-matter of the new action or proceeding was identical with that in which the testimony of the deceased party or witness was given.” (Deering v. Schreyer, supra.) The purpose appears to have been to return to the broader common-law rule, which had been narrowed by section 830 of the Code of Civil Procedure as originally enacted (cf. statement, 5 Wig-more on Evidence [3d ed.], § 1387, pp. 92-93 — “ But it is worth noting that usually the effect of the common-law principle would be even broader than the statutes’ terms, and would suffice to admit even where the case is not covered by the phraseology of the statute ”).

In Cohen v. Long Is. R. R. Co. (154 App. Div. 603, 606), it was pointed out after the 1899 amendment that the object was to escape a ‘ ‘ narrow and technical construction ’ ’ and to return to the common law. It was there stated: “ The admissibility in general of evidence given on a former hearing of the same subject-matter between the same parties did not originate with the Code, hut existed at common law long before a Code of Procedure was dreamt of.” (Italics supplied.) What the common-law rule was is thus defined in Varnum v. Hart (47 Hun 18, 25), per Haight, J., later a Judge of this court: The rule at common law is, in substance, that if a witness has been examined in a legal proceeding between the same parties, involving the same questions, so that the counsel for either party could have the right to examine and cross-examine, then the evidence of such a deceased witness may he used. (1 Phillips on Ev., 400; n. 100.) ” (Italics supplied.)

The rationale is thus stated by Wigmore: “A testimonial statement may still not satisfy the Hearsay rule even when it has been made before a tribunal or officer at which there was cross-examination, or the opportunity, for the then opponent; because the opportunity must have been an adequate one. Unless the issues were then the same [italics from Wigmore] as they are when the former statement is offered, the cross-examination would not have been directed to the same material points of investigation, and therefore could not have been an adequate test for exposing inaccuracies and falsehoods. Unless, furthermore, the parties were the same in motive and interest, there is a similar inadequacy of opportunity, for the present opponent cannot be fairly required to abide by the possible omissions, negligence, or collusion of the different party, whose proper utilization of the opportunity he has no means of ascertaining ”. (5 Wigmore on Evidence [3d ed.], § 1386.)

Construing section 348 of the Civil Practice Act liberally, so as to avoid the technicalities with which the predecessor statutes had sometimes become limited, it is still necessary that the spirit of the rule shall be observed, which requires that the causes of action shall have sufficient similarity to have furnished an incentive to cross-examine for the same purpose as in the later lawsuit into which the earlier testimony is sought to be introduced. Wigmore has indicated that one criterion is that there shall have been the same property interest to protect in the former litigation (§ 1388, p. 101). There was no similar property interest to protect in this incompetency proceeding, inasmuch as the will was in no way involved.

There was not identity nor even approximation of subject matter between the pending will contest and the inquest before the sheriff’s jury in 1930 which led to the appointment of a committee. The circumstance that notice of the incompetency proceeding was served upon this appellant is irrelevant. This court has recognized that the issues are so different that not even a petitioner in an incompetency proceeding is precluded from asserting the validity of a prior business transaction by the alleged incompetent. Moreover, there is a difference between admitting the fact of an adjudication in an incompetency proceeding, and utilizing the testimony in the incompetency proceeding as independent evidence of lack of testamentary capacity. (Hughes v. Jones, 116 N. Y. 67.) No one present or represented at this inquest was apprised that it was to his interest to sustain or attack the prior testament, nor does it appear that the beneficiaries under this will were even aware of its existence.

Section 1371 of the Civil Practice Act itself establishes an important difference in the issues by providing that in proceedings for the appointment of a committee by reason of lunacy, “ the inquiry with respect to his competency * * * must be confined to the question whether he is so incompetent at the time of the inquiry ”. In this instance, that meant in 1930, after the will and codicil were executed. This section limits testimony to be admitted respecting acts and conversation of tbe alleged incompetent to such as have occurred within two years before the hearing, but such testimony is received only to aid in the determination of the question of incompetency at the time of the inquest by the commissioners and the sheriff’s jury. Even if the jury makes a finding concerning prior incompetency, it is a nullity (Goldberg v. McCord, 251 N. Y. 28; Boschen v. Stockwell, 224 N. Y. 356). The issue in the incompetency proceeding was whether testatrix was incompetent at the time of the inquest in 1930, but not when she executed this will and codicil in the previous year.

The only basis on which the testimony at the inquest could be received upon the will contest, would be that the subject matter was identical and the parties the same so that the incentive as well as the opportunity for cross-examination would have existed upon points material to the will contest. It is apparent that, regardless of what the witnesses testified in the incompetency proceeding concerning Mrs. White’s condition during the two preceding years, no incentive existed on the part of anyone at the inquest to cross-examine with respect to anything except her condition in 1930. There was no occasion to consider her prior condition at all except insofar as it bore upon her competency at the later date.

The issues in the separate proceedings were different in other and deeper respects. The United States Supreme Court had occasion to refer to this question in Keely v. Moore (196 U. S. 38), in reviewing a judgment of the Court of Appeals of the District of Columbia. The court there pointed out that the commitment of a man as a lunatic presents a different issue from whether the alleged incompetent possesses testamentary capacity. The court said (p. 46): “ In this connection exception was taken to the exclusion of the application of James E. Cunningham for the admission of Thomson to the insane asylum, and of the certificate of the two physicians as to his sanity. These were properly excluded, not only because they were unsworn testimony, but because they were given in a different proceeding and upon a different issue. Thomson may have been insane to the extent of being dangerous if set at liberty, and yet may have had sufficient mental capacity to make a will, to enter into contracts, transact business and be a witness. In the case of Leggate v. Clark, 111 Massachusetts, 308, the admission of similar testimony was treated as error. ’ ’

The Supreme Court of Illinois likewise considered the question in Lewandowski v. Zuzak (305 Ill. 612, 614), with the same result, where the court said: “ The proceeding for the commitment of the testator to the hospital for the insane was upon a different issue from that in this case, and the certificate of the physicians was given to the jury without any opportunity for cross-examination by the appellants.”

In Rintelen v. Schaefer (158 App. Div. 477, 483), the depositions of physicians who had examined testatrix in an incompetency proceeding were excluded in a will contest.

The circumstance that in some of these decisions the courts were concerned with the commitment of an insane person rather than the appointment of a committee does not render irrelevant either their underlying thought or their authority. All contracts of a person of unsound mind, made after the appointment of a committee are, to be sure, absolutely void (Wadsworth v. Sharpsteen, 8 N. Y. 388; Matter of Long, 261 App. Div. 456, 458-460), but “ A will stands upon a different footing in some respects, from a contract to be executed inter vivos, in as much as it does not take effect until death has put an end to the commission.” (Wadsworth v. Sharpsteen, supra, p. 396.) It is well established that even after ‘‘ office found ’ ’ by the appointment of a committee, testamentary capacity is not necessarily eliminated. A committee cannot make a will for an incompetent any more than he can sue for divorce; and although one who is wholly incompetent cannot make a valid will, our courts and those of other States have been quick to recognize that the factors are far from being identical which enter into the appointment of a committee and capacity to make a will. In Matter of Williams (24 App. Div. 247), the test of a man’s right to the possession and control of his property was said to depend upon his fitness to manage the common and ordinary affairs of business and of life. Committees have had to be appointed over persons suffering from serious and incapacitating delusions, yet “ The holding of delusions does not in and of itself constitute testamentary incapacity. There may co-exist delusion and a disposing mind. A delusion affects testamentary capacity only when it enters into or controls in some degree its exercise. (Dobie v. Armstrong, 160 N. Y. 584; Middleditch v. Williams, 45 N. J. Eq. 726; Shreiner v. Shreiner, 178 Penn. St. 57.) ” (Matter of Heaton, 224 N. Y. 22, 29, per Collin, J.)

In Dobie v. Armstrong (160 N. Y. 584, 593) this court said: “ A man may even have an insane delusion and yet be able to make a valid will; for the will to be invalid must be the result itself of the delusion ”. Yet the delusion may render him subject to the appointment of a committee.

It is familiar law that even where a person is at times wholly insane, a will may properly be executed during a lucid interval. In numerous cases, wills have been sustained that have been executed during such periods even after committees have been appointed. In Matter of Coe (47 App. Div. 177, 179) it was said: “ In Carter v. Beckwith (128 N. Y. 312) it was held that one who has been judicially determined to be a lunatic, and for whom a committee has been appointed, is incapable of entering into a contract, and any contract be assumes to make is absolutely void. This, however, does not apply to the making of a will (Wadsworth v. Sharpsteen, 8 N. Y. 388, 393; Lewis v. Jones, 50 Barb. 645; Breed v. Pratt, 18 Pick. 115.) The inquisition, however, is prima facie evidence of incapacity. Lucid intervals may be shown, and if during such a period a will is made intelligently and freely it may be established. (1 Jarm. Wills [6th ed. by Bigelow], 37.) ” In the recent case of Matter of Charap (286 App. Div. 1000, affg. 4 Misc 2d 627), a will was admitted to probate after a committee bad been appointed but not discharged.

The point upon this appeal, as it seems .to me, is one which is likely to affect many persons who have suffered or may suffer from mental illness. It goes without saying that the will of any one suffering from mental illness should be admitted to probate only after careful inquiry concerning the mental competency of the testator. Nevertheless, especially in this day and generation, many a person is recognized as being mentally ill who is capable of making a will, nor should testamentary capacity be destroyed, in practical effect, by the testimony taken in a proceeding which has a different object in which the parties in interest are unable or have no incentive to participate. In ruling upon this question it is important to bear in mind that everyone who may stand to benefit from a putative benefactor should not be obliged to intervene, if a proceeding is instituted to declare him incompetent, in order to cross-examine whatever witnesses may be called lest the potential beneficiary be precluded otherwise from laying a foundation for contending that the will was executed while the testator’s mind was lucid prior to the institution of the incompetency proceeding, or that the insanity requiring the appointment of a committee stems from some delusion that has not destroyed testamentary capacity. Those aspects are likely to he irrelevant to an incompetency proceeding, hut they are the heart of a will contest.

Committees of elderly people suffering from senile dementia are frequently appointed. The word lunacy ” as used in section 1371 and the other sections of article 81 of the Civil Practice Act includes imbecility arising from old age and loss of memory or understanding (Matter of Preston, 113 App. Div. 732), nevertheless these arteriosclerotic disturbances and other mental illnesses are often in remission, when wills can validly be executed. Even the previous appointment of a committee creates merely a presumption for testamentary purposes that the same mental condition continues, until overcome by satisfactory evidence (Matter of Widmayer, 74 App. Div. 336; Matter of Rice, 173 Misc. 1038, per Foley, S.).

In the instant case, no one saw fit to oppose the appointment of a committee over this woman in 1930. Her brother was the petitioner, and the proceedings, as frequently occurs in such instances, were merely formal. It was apparent at the time of the inquest that she was incapable of attending to the ordinary affairs of business and of life, but there was no occasion to inquire into whether this had deprived her of testamentary capacity at the time of the inquiry let alone during the previous year. The unchallenged testimony of the physician, as well as that of her brother, must have been very damaging to the proponent upon the will contest 24 years later, yet at the time when it was given no one present was interested in ascertaining whether she had been competent to make a will in 1929, or whether, although the appointment of a committee was recognized as being necessary, she was thereby deprived of testamentary capacity. No one then was concerned with upholding or setting aside a previous will; the existence of such a document was neither mentioned nor considered. These witnesses were not cross-examined concerning these vital aspects of the probate of what is now propounded as her last will and testament.

Testimony of testatrix’ brother and of the examining physician similar to that which was introduced at the inquest might have been admissible upon the will contest, if the witnesses had been present and subject to cross-examination upon these aspects of this litigation which were but dimly shadowed then; but unless effective cross-examination is to be foregone — said by Wigmore to be the greatest engine for discovery of truth ever invented — then the decree denying probate to these instruments must be reversed and a new trial granted at which the prior testimony of these witnesses is to be excluded. Respondent’s counsel indicated upon the argument that another trial would also result in denying probate by reason of other evidence not contained in this record. If so, the other evidence should be produced, and a precedent should not be set identifying the subject matter and parties in proceedings for the appointment of committees with the divergent ones in contested probate proceedings. The present issue could not have been and was not presented and tried in the incompetency proceeding. These parties were not represented at the inquest in the person of the alleged incompetent. Neither she nor her special guardian attempted or were called upon to present or to try the issues which would arise in her own will contest. The difference in subject matter is thus effectively described in Corpus Juris Secundum: “ Under some statutes, the mental incapacity [for the appointment of a committee] must amount to insanity, but ordinarily, under the statutes, it is not necessary that the mental incapacity of the subject be such as to come within the strict sense of such terms as ‘ insanity,’ ‘ idiocy,’ or ‘ lunacy;’ or an entire absence of reason, understanding, or memory; or that the subject be violent or dangerous to the safety of the community. As a general rule, it is sufficient if, for any cause, his mental faculties have become so impaired as to make him incapable of protecting himself * * * and where, by reason thereof, he would be liable to be deceived or imposed on by artful or designing persons.” (44 C. J. S., Insane Persons, § 11, subd. b, par. [1], pp. 64M35.) Mrs. White was evidently subject to these infirmities when her committee was appointed in 1930, but, as the language just quoted implies, the criterion is different in important respects from that which determines testamentary capacity, and the beneficiaries under this will should have been allowed a day in court without being concluded by the unchallenged testimony at the inquest addressed to a different phase of testatrix’ personality and capability.

The order appealed from, should be reversed and a new trial granted.

Desmond, Froessel and Burke, JJ., concur with Dye, J.; Van Voorhis, J., dissents in an opinion in which Conway, Ch. J., and Fuld, J., concur.

Order affirmed.  