3 Bradf. 240 | N.Y. Sur. Ct. | 1855
A contest having arisen on the probate of the will of the deceased, the contestants seek to introduce
In the matter now in hand, the widow having propounded the will, could not be permitted to become a witness, except so far as the statute authorizes her examination touching the cireum
But there is another way in which declarations are often given in evidence, that demands consideration as to the particular nature of the declaration. In the case of Wright vs. Tatham, 1 Ad. & El., 3, 8; 7 id., 313; 4 Bing. N. C., 489, after a long struggle through the courts, and very elaborate discussions by distinguished counsel and judges, the House of Lords decided that letters addressed by third parties to the person whose sanity was in issue, were not admissible to show how he was treated by the parties writing, unless connected by proof with some act by the person in regard to the letters or their contents. The reasoning was that the letters could only be evidence as opinions, as acts of treatment, or as explaining some act of the deceased. The facts did not bring them under the last head, and under the two former they were opposed to the principle of the common law which rejects hearsay evidence, and opinions except from experts. It was urged, and perhaps with good reason, that the evidence would have been admitted in the ecclesiastical courts, but I do not feel obligated in questions of evidence to the rules of those tribunals. The Surrogate passes upon wills of real and personal estate, and as wills in respect to lands are governed by the rules of the common law, it would seem proper in a case of doubt, to lean to the common law rule. I am not aware, however, of any case in which the mere hearsay opinion of a living witness, or the declaration of a party has been admitted in the ecclesiastical courts where there were several parties in interest, unless there was some connection between the declaration and opinion and the decedent who was the subject of it; or unless it was viewed as an act of treatment. There is a point of view still in which the proposed evidence may be admissible. When a party is accused of having effectuated a certain act by undue means, if the facts show an opportunity for the accomplishment, I cannot