
    In the Matter of the Will of John McCarthy, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    Evidence—Probate—Code Civ. Pro., § 835.
    Evidence of the attorney who drew the will as to communications made to him by the testator, not in the presence of the subscribing witnesses or any third person, relating to the disposition of testator’s property, is inadmissible in proceedings to probate the will.
    Appeal, by contestants, from a decree of the surrogate of Ontario county, admitting the will to probate.
    
      D. B. Backenstose, for app’lts; J. B. Bean, for resp’ts.
   Dwight, P. J.

The only questions determined by the decision of the court on a former appeal in this case were (1) of the admissibility in evidence, by the testimony of the witness Nicholas, an attorney and counselor-at-law, who drew the will, of the conversation had by him with the deceased, at the time the will was executed, in the presence of the subscribing witnesses; and (2) of the admissibility of the answer by the same witness to the question : “ Where did you get your instructions from how to draw it (the will)?"

For the exclusion of these two items of evidence the former decree was reversed.

On the second hearing the learned surrogate, in supposed deference to certain intimations contained in the opinion delivered at general term, not necessary to the decision actually made, admitted the testimony of the witness Nicholas as to all the communications made to him by the testator, not in the presence of the subscribing witnesses or of any third person, relating to the disposition of the testator’s property. This ruling, which was excepted to by the contestants, was in apparent violation of the rule declared by the court of appeals in the two cases of In re Coleman, 111 N. Y., 220; 19 N. Y. State Rep., 501, and Loder v. Whelpley, 111 N. Y., 239; 19 N. Y. State Rep., 631. And it was, as the surrogate states in his opinion, upon the evidence so received that the second decree was based.

For the error of the reception of the evidence last mentioned, the decree now appealed from must be reversed.

Decree appealed from reversed and the proceeding remitted to the surrogate of Ontario county for a rehearing, with costs of this appeal to both parties, payable out of the estate.

Macomber and Corlett, JJ., concur.  