62 Barb. 476 | N.Y. Sup. Ct. | 1871
By the Court,
This proceeding was instituted under the provisions of the Revised Statutes, (2 R. S. 62, 63; 3 id. 1428, 5th ed.,) to obtain a revocation of the probate of the will of George Paige, which had been proved before the surrogate of Delaware county. The application was based upon the incapacity of the testator, by reason of his being under the age of 18 when the will was executed. The petitioner was the mother of the testator. The preliminary proceeding was in due form.
Upon the merits, that is, upon the main fact of the testator’s age, there was proof sufficient to satisfy the surrogate, and sufficient to prevent a reversal of his finding, that the testator was below the age of 18 at the time of executing the will in question. The mother of the testator, who testifies to the day, month and year of his birth, and that
This'court can only interfere with the decree, therefore, by finding some legal error committed on the trial, by the admission or rejection of evidence. 1. The first objection taken by the appellant is,, that the mother of the testator was an incompetent witness to testify to the birth under the provision of section 399 of the Code, his birth being a personal transaction between the deceased and his mother. This circumstance or act of nature,*in which the parties were the involuntary actors or instruments, was seriously urged as coming within the statute prohibition. We cannot stop to discuss it; its absurdity relieves us from further noticing it. 2. A second objection is to the admission, as evidence, of a memorandum found in an account book of Dr. Marshal], then deceased, who attended and officiated at the birth of the testator, who, when living, was a practising physician and surgeon. The memorandum, which was proved to be in the handwriting of Dr. Marshall, was a charge against the mother of the testator, and the entry was as follows : “ 1847, May 27, Angeline Dingy, Dr. to delivering her of a son, $3.00.” On the opposite page a credit marked “ settled.” This book was kept not as a journal, but each amount by itself. The objection to this evidence would have been good, I think, if it was material, and if it had been duly made. I know of no rule of evidence which would allow such a memorandum of a third person to be evidence, without being sustained by proof
Other questions are raised in .the brief, but which do •not seem to have been raised on the trial, and.do not
Potter, P. J., and Parker and Learned, Justices.]
I am for affirming the decree of the surrogate, with costs.
Decree affirmed.