261 A.D. 1105 | N.Y. App. Div. | 1941
In a contested proceeding for the probate of a will, decree of the Surrogate’s Court, Queens County, entered on a directed verdict, admitting the will to probate, reversed on the law and a new trial granted, with costs to abide the event. It was error to exclude the testimony of the witness Florence N. Howard as to conversations with the deceased, if such conversations occurred before the making of the will, or subsequent thereto at a time not too remote from its date. The witness having renounced all claims against the estate, was not a person interested in the event within section 347 of the Civil Practice Act, and her testimony as to conversations with the decedent was, therefore, competent. (Matter of Wilson, 103 N. Y. 374; Loder v. Whelpley, 111 id. 239; Matter of Kindberg, 207 id. 220; Matter of Lawler, 253 App. Div. 120.) Even if the conversations occurred after the will had been made, they would be admissible, if not too remote in point of time, to show the state of mind of the testatrix toward those about her and her ability to resist influence. (Matter of Putnam, 257 N. Y. 140.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.
