121 N.Y. 575 | NY | 1890
All the questions presented in this record were rightly disposed of in the courts below. The only ones which, in my opinion, were of sufficient importance to demand consideration arose upon the exceptions of the appellant to the exclusion of the evidence of a witness, as to the conversations and transactions had by decedent with the witness and with others in the presence of the witness. The witness was the nephew and both a specific and residuary legatee under the will of the testator. The object of the proposed evidence could only have been to show undue influence, or restraint, exerted upon the deceased, or his mental incapacity; for it was offered by the contestant, under formal objections, upon these grounds, to the admission to probate of a codicil to the original will, by which there was given from the estate to the proponent of the codicil, respondent here, a legacy, relatively large in amount. Therefore, while, as to any communications or transactions with the witness, the proposed evidence was plainly enough inhibited by section 829 of the Code, his testimony as to the conversations, or transactions, while he was present in the room, had between the deceased and other persons, was, under the circumstances, inadmissible. In the case of Holcomb v. Holcomb (
The judgment appealed from should be affirmed, with costs to the appellant, to be paid out of the estate.
All concur, except EARL, J., dissenting.
Judgment affirmed.