
    Abraham Hewlett, Appellant, v. Samuel Wood et al., Respondents.
    (Argued October 10, 1873;
    decided November 11, 1873.)
    An action for partition brought under the act in regard to disputed wills (chap. 238, Laws of 1853) by an heir-at-law not in possession, for the purpose of determining the validity of a devise under which the property is held, has the incidents and results of an ordinary action, and the judg. ment therein is to be reviewed only in the manner prescribed by the Code; where therefore the judgment is affirmed by the General Term, this court can review only questions of law.
    Persons not experts, after testifying to facts and incidents, in relation to á testator, tending to show soundness of mind or the contrary, may testify to the impression produced upon them thereby, and also whether the acts ' and declarations testified to seem to them rational or irrational, but they may not as to the general soundness or unsoundness of mind of the testator; or as to his capacity to execute a will.
    This was an action of partition. Plaintiff claimed as heir-at-law of Abraham Wood, deceased. Plaintiff was not in actual possession, and the premises were in possession of others (defendants) who claimed adversely to him under an alleged devise by said Wood. The action was brought under the statute, in reference to disputed wills (chap. 238, Laws of 1853), authorizing an heir-at-law claiming land by descent to bring an action for partition, though not in possession, and to contest in such action the validity of any will or devise under which possession of the land is held.
    The action was tried by the court at Special Term, who found that said Wood died leaving a last will and a codicil thereto by which the lands in question were devised to others than plaintiff; that the testator, at the time of the execution of said will and codicil, was of sound mind and in every respect competent to devise real estate; was under no restraint or duress, and not the subject of fraud or undue influence, and, as a conclusion of law, that plaintiff had no right or claim to the lands in question. Judgment was perfected accordingly, which was affirmed by the General Term.
    Upon the argument of the appeal appellant’s counsel contended that this court could review the questions of fact which were raised on the trial. He also claimed that there was error in the reception and rejection of evidence upon the trial.
    The respondents’ counsel claimed that, notwithstanding there might have been erroneous rulings as to the reception and rejection of evidence, the case could be disposed of as if it were res nova here, and the will upheld, if the facts legally established are sufficient thereto. Held, that the action, though specially authorized by statute, had the incidents and results simply of an ordinary action of partition, and the judgment could be reviewed here only as prescribed by the Code, this court only having power to review the questions of law.
    A witness, on the part of defendants, was allowed to testify as to the impressions made upon his mind in relation to the capacity of the testator for business or otherwise. Held (Gboveb, J., dissenting), error. The court stated the rules, as established by the decisions, as follows :
    The general rule is that witnesses must speak of facts alone, and may not utter opinions, conclusions or inferences. To this rule there are these exceptions.
    The subscribing witness to a will may speak as to the sanity of the testator at the time of executing a will. (Powell on Devises, 69; Clapp v. Fullerton, 34 N. Y., 190.)
    Experts may give their opinions upon questions of trade, skill or science from the facts proven, or the circumstances noted by themselves. Persons not experts may testify to facts and incidents, known or observed by them, in relation to a testator, which, tend to show soundness of mind or the con. trary, and may testify to the impression produced upon them by what.they beheld or heard, and whether the acts and declarations thus testified to seemed to them rational or irrational (Clapp v. Fullerton, supra)', but they may not express an opinion as to the general soundness or unsoundness of mind of the testator (.People v. O'Brien, 36 N. Y., 276 ; People v. Reel, .42 id., 270), nor as to the competency .of the testator to execute a will. (3.6 N. Y., 276 ; De Witt v. Burley, 17 id., 340.)
    
      L. S. Chatfield and E. T. Sehenek for the appellant.
    
      Abram, Wakeman for the respondents.
   Folger, J.,

reads for reversal and new trial.

All concur, except Grover, J., dissenting.

Andrews, J., not voting.  