
    ELEANOR VINCENT and MARY J. BELL, Appellants and Contestants, v. DAVID McMASTER, as Executor, etc., of HUGH S. DUNN, Deceased, Respondent and Proponent.
    
      Evidence — the declaration of an attorney who drew a will, made in order to induce a witness to sign it — when admissible on the hearing of an application for its
    
    Appeal from a judgment in favor of the defendants, entered upon the verdict óf a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The trial was had upon the reversal by the General Term, of a decree of the surrogate of Westchester county, admitting to probate the last will and testament of Hugh S. Dunn, deceased. Upon the trial the court refused to allow one of the witnesses of the will, Dr. Crump, to testify as to a conversation had by him with Mr. Shiel, who drew the will, in a room adjoining the bedroom of the testator.
    The court at General Term said: “ The conversation between Mr. Shiel and Dr. Crump was improperly excluded, although it did not take place in the presence of the alleged testator. The inquiry involved the capacity of the testator to make a will, which was denied, and the question whether the testator made the will without undue influence being exerted upon him. It appeared that the will was drawn and its formal execution directed by Mr. Shiel, who was an attorney. Dr. Crump was the physician in charge of the alleged testator, who died some five or six days thereafter. He at first declined to witness the will, Shiel thereupon called him out of the room, and told him that he only, by signing the will as a witness, attested the formal execution, and not the capacity of the alleged testator.
    
      “ It was not a question of agency in Shiel to bind the deceased. It was a part of the transaction ; it was more. The will gave all the property, some $14,000, to McMaster, a stranger, and made him sole trustee. Assuming the testator to be capable to make a will 'and to have employed Shiel to prepare it, the case would be a clear one of agency to bind the deceased. This is the claim of the executor. The contestants do not claim this agency; they say the deceased was deprived of his reason. The inquiry is widened beyond mere agency — Shiel was an actor in the subject of inquiry. It was his declaration thus engaged, to a witness to the will, and it was a declaration made whereby he induced him to sign his name as a witness to the will that was rejected. It was rejected although the contestants avowed their ability and intention to prove that Shiel and McMaster were acting in concert, .and that Shiel was the agent of McMaster.” ,
    • Thomas H. Hartwell and S. Chittenden, for the appellants.
    ■ Martin J. Keogh, for the respondent.
   Opinion by

Parnard, P. J.;

Gilbert, J., concurred; Dyicman •T„ dissented.

Yerdict, judgment and motion- denying new trial reversed, and new trial granted, costs to abide event.  