90 N.Y.S. 208 | N.Y. App. Div. | 1904
The testimony is voluminous, twenty-five witnesses having been called by the plaintiff and about the same number by the answering defendants, but as we consider that certain objections and exceptions taken by the appellants to the admission of evidence, to which attention will be called, present reversible error, it is unnecessary to refer to the testimony in detail or at length. It is sufficient to say that it presents a fair question of fact as to each proposition submitted to the jury by the learned tidal court.
Cornelius Holland died on the 7th day of April, 1901, at the city of Auburn, N. Y., where he had resided for many years, being then about seventy years of age. He left an estate consisting of both real and personal jiroperty of the value of about $10,000, and left him surviving the plaintiff, Daniel M. Holland, the defendants
Some evidence was given tending to show that for some years prior to the separation and down to the time of his death the deceased was irrational and incapable of making a valid testamentary disposition of his property. The learned trial court, however, properly determined that it was insufficient to establish that the deceased was irrational or incapable of transacting any business which did not involve his family or the consideration of the relations and obligations which he sustained to them. The proposition to which most of the testimony offered by the plaintiff was directed was that the decedent during all those years and at the time of the execution of the alleged will was laboring under an insane delusion with respect to his wife and children, which had no basis in fact, but was the result of a disordered or diseased mind, and that such insane delusion controlled and impelled him to exe
This class of testimony was permitted to be given by two of the decedent’s children, Daniel M. and Nellie Holland, who were parties to and concededly interested in the result of the action, notwithstanding it was objected to as being incompetent and improper under section 829 of the Code of Civil Procedure upon the ground that it constituted a personal transaction or communication between them and their deceased father. In each instance the objection was overruled, the evidence admitted and the appellants’ counsel duly excepted.
Daniel >1. Holland, the plaintiff, and decedent’s oldest son, was asked : “ Q. Shortly before you left the farm and came to Auburn with your father state what you saw your father do there at the farm which attracted your attention and which you took no part in and had nothing to do with yourself? * * * A. Well, I saw him go around and break most of the machinery that was left on the
The witness further said : “ He (the deceased) acted excited and nervous like and looked wild so that I was afraid of him.” “ I saw him take it (a revolver) out and he says to my mother, ‘ Do you want me to divide it with you ? ’ and he stepped around in front of her and he shot and shot by her and shot out the door; she was standing between him and the door; he shot twice. He pointed the revolver towards her on both occasions. My father did not say a word to me on that occasion, nor I to him. He said nothing to either of the other children on that occasion ; they were not there. Mother thezi left and went to her sister in Waterloo. She didn’t take the children with her at the time. They went to her after. Mother went away immediately without the children.”
The witness further states that at the time his father was “ very excited and nervous and he had a wild look and kind of a grin on his face and kept making motions all the time before he took the revolver out of his pocket and in the room where he kept his drawer locked up, bed room, then he came out and commenced sticking his hand in his pocket and pulled it out and then at last he put his hand in his pocket and pulled the revolver out; acted as if he was going to do it, and was kind of afraid to do it or something.”
Other occurrences of similar import were related by the witness. He was permitted to answer the following: “ Q. Did you ever see your father and the little boy, Eugene, together; hear anything between them in which yon had nothing to do and took no part whatever? * * * A. I did; Eugene was a little fellow, probably three years old, and he wanted something from his father, and I can’t just remember what it was, and his father told him to go away, that he was no boy of his, so he got that idea in his head that his father thought he wasn’t his boy or something; he used to follow him around quite often and he would say, ‘ Pa, I is your boy,’ he would say ‘ go away from me, you ain’t; no, you’re not mine.’ He
The witness was also permitted to testify that he never saw his father caress or take upon his lap either the little boy Eugene or his sister Mary.
Nellie Holland was also permitted to give considerable evidence of the same general character. She testified, when asked whether she ever observed anything on the part of her father that attracted her attention either at the Baker farm or at the Swamp farm, “ Why, of course, it was such a common occurrence, I noticed him excited and my mother afraid of him; she was crying; of course I was quite young and I don’t remember any particular incident; I remember an instance when he came from the field to the house and went through the house; I have seen him do that and he was very excited all the time, specially — I never saw him only (when) some men came to the well for a drink, or some agent came to the door, on some occasion like that; he would come to the house and get excited, but he never said anything in , particular to my mother; but he always went through those motions and grinning at her. I can’t say I really ever heard him accuse her.”
The evidence adverted to—-and there was considerable more of the same tenor — was incompetent and improper because within the inhibition of section 829 of the Code of Civil Procedure.
In Holcomb v. Holcomb (95 N. Y. 316) the rule is stated in the head note
In that case, which involved the validity of an instrument executed by the deceased, two witnesses, sons of the testator, were allowed to give evidence as to what they saw of him at the time of its execution. They were permitted to state what his appearance was; that he did not spealc to either of them; that he did not open his mouth. Each testified to a mental and bodily condition of the assignor, as indicated by conduct which they observed and by his absolute inattention to them and their remarks, which showed that he did not comprehend the nature of the act which was the subject of investigation. It was held that such testimony was incompetent and prohibited by the section of the Code of Civil Procedure referred to, the witnesses being interested parties. Another'witness similarly situated was asked: “ State what you heard your father saying or doing, or what you heard your father say when it was not addressed to you ? ” And the witness answered: “ I have often heard him talking to himself and carry on conversations the same as though he was talking to somebody, and there was nobody in the house; that was in the room he occupied. I listened to hear what he was saying.”
It was held that the evidence was incompetent and improper. The court said: “ His (the witness’) testimony is not made admissible because his father did not solicit the interview, and was even ignorant of his presence. The words when spoken became a communication which he received. It was then a communication to him.” Further in that case another witness was permitted to say: “ I recollect of meeting my father on the road just below Big Hollow, within two or three years of his death. I was in a wagon and he Oxi foot, walking. I saw him ahead; he was tottering along feebly. I stopped my horse and spoke to him, and he kind of stared at me. * * * I don’t think he knew me.”
It was held that all of such evidence was incompetent. The Holcomb case has been cited with approval in many of the most recent decisions of th.e Court of Appeals, involving the interpreta
In Matter of Eysaman (113 N. Y. 62) the head note is as follows : “ This rule excludes not only testimony of transactions directly between the witness and the deceased, and communications made by the latter to the former, but of any transaction between the deceased and others in any portion of which the witness participated, or any conversation in his hearing, although not with or addressed to him; also any testimony as to the acts and conduct of the testator observed by the witness tending to show mental capacity.” (See, also, Gambee v. Gambee, 24 App. Div. 446.)
If the deceased had said to either of the witnesses, Daniel M. or Nellie Holland, that he was going to shoot, or attempt to shoot, their mother, it would not be claimed that they would not be precluded by section 829 of the Code of Civil Procedure from testifying to such conversation, although it might be very cogent proof of his insanity. Such evidence would be excluded because it was a personal communication between the deceased and the witnesses, and so, although they made no reply or took no part in the conversation. The transactions detailed by the witnesses were in effect the same. The father, instead of declaring his intention by words, fully expressed it by his acts in taking the revolver out of his pocket, pointing it toward the mother and firing. Not only were the witnesses permitted to state what the deceased did, but they were allowed to say that he seemed excited and nervous; that he had a wild look, all tending to establish the proposition that he at the time was insane or irrational.
It is concluded that the evidence to which attention has been called was within the inhibition of the statute; that it cannot be said it was not harmful to the appellants, and that, therefore, its admission over defendants’ objection constitutes reversible error.
The widow of the deceased was permitted to testify under defendants’ objection that when she executed the mortgage to John Hogan, which was a part of the transaction which resulted in the separation- agreement entered into by the deceased and his wife, she did not receive the $1,000 which the mortgage was given to secure, nor any part of it. The inference to be drawn from such testi
Attention has been directed to several other exceptions of similar character taken by the appellants during the course of the trial, but as the judgment and order appealed from must be reversed because of the admission of the evidence referred to, we deem it unnecessary to discuss them.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellants to abide event.
See 95 N. Y. (Banks’ ed.) 352.— [Rep.