
    In the Matter of the Probate of the Will of Ebenezer McArthur, Deceased.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    1. Will—Probate—Evidence.
    On proof of a will a witness was permitted to state all that she knew or observed in relation to the mental and physical capacity of the testator, and further that she did not think he was in his right mind. Held, that it ■ was not error to refuse to permit the witness testify as to the competency of the testator to do business on the day before the will was executed.
    
      2. Same.
    A witness, who was an heir at law and a contestant, offered to show the appearance of the testator a day or two before the will was executed. Held, under Code Civ. Pro., § 829, that the evidence was improper.
    Appeal from a decree of the surrogate’s court of Tompkins county, admitting to probate the last will and testament of Ebenezer McArthur, deceased.
    
      A. P. Smith,, for app'lt; George B. Davis, for resp’ts.
   Martin, J.

The learned surrogate before whom this proceeding was instituted has found that the last will and testament of the testator, which was admitted to probate, was duly and properly executed; that the testator was at the time of its execution in all respects competent to make a last will and testament of real and personal property; and that he acted freely and without undue influence or restraint in making it. A careful examination of the proceedings as disclosed in the appeal book has led us to the conclusion that these findings are fully sustained, and in accordance with the weight of the evidence given on the trial, and that the decree appealed from should be affirmed, unless there was some error in the admission or rejection of evidence which requires a reversal.

The appellant contends that the court erred in excluding the evidence of Mrs. E. B. Jones as to the capacity of the testator to do business on the day before the will was executed. The claim is that she was qualified as • an expert and her opinion as such should have been received. The question of the competency of Mrs. Jones was in this case a question of fact to be determined by the surrogate. He held that she was incompetent to give an opinion, but permitted her to state very fully all she knew or observed in relation both to the mental and physical capacity of the testator. Indeed, she was permitted to go further and state that she did not think he was in his right mind. We do not think the refusal of the surrogate to permit her to testify further and give her opinion as to his condition to do business on that day was error which requires us to disturb the decree in this case. Matter of Arnold, 14 Hun, 525.

Uor do we think that the decree should be reversed because the surrogate excluded the contestant’s offer to prove by the witness Goodrich the signatures of the testator to_ the will of 1878 and codicil of 1885, or in excluding such will and codicil. If we assume that the evidence was admissible, and that the surrogate erred in rejecting it (which we do not decide), still the error was a harmless one, as the signature to both the will and codicil were subsequently proved by another witness and they were received in evidence. Moreover, the surrogate has found that such will and codicil were made as claimed by the contestant.

On the trial the contestant offered to prove by John McArthur the appearance of the testator on the Wednesday before the will was made, when he saw him and had a personal interview with Mm. This witness was an heir-at-law and the contestant in the proceeding before the surrogate. The surrogate excluded the evidence. The manifest purpose of this evidence was to show that the appearance of the testator was such as to indicate his incompetency to make the will in question.

In Holcomb v. Holcomb (95 N. Y., 316, 326), it was held that evidence of the appearance of a decedent, and that he did not speak, was within the prohibition of § 829. In that case the court said: “Transactions and communications embrace every variety of affairs which can form the subject of negotiations, interviews or communications between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another.”

In the Matter of Eysaman (113 N. Y., 62, 72; 22 N. Y. State Rep., 136), it was held that testimony as to the acts and condition of the testator observed by an interested witness tending to show mental capacity was within the prohibition of the statute and inadmissible. We think the ruling of the learned surrogate was within the spirit of the statute and the principle of the cases cited.

We find no other exceptions that require special consideration or that would justify a reversal of the decree appealed from. It therefore follows that the decree should be affirmed.

Decree affirmed with costs.

Merwin, J. concurs.

Hardin, P. J.

Since the decision made by this court of Steele v. Ward (30 Hun, 555), the court of appeals has passed upon the question involved in that case, In re Eysaman (113 N. Y., 62; 22 N. Y. State Rep., 136), and the foregoing opinion of Martin, J., accords with the rule laid down in the Eysaman case, and therefore I join in it, and vote to affirm.  