261 A.D. 103 | N.Y. App. Div. | 1941
The contestants herein, who are the three children of the deceased, appeal from a decree of the surrogate of Jefferson county entered on a jury verdict, which verdict was directed by the trial court. The verdict was on certain questions submitted by reason of objections filed to the probate of the alleged last will and testament of the deceased and such questions were answered by direction in favor of the proponents. The proponents were two in number, one Ruby Johnston Hayden, the widow of the deceased and executrix and the chief, but not sole, beneficiary under the will offered for probate, and A. Raymond Cornwall, an attorney, named in such will with Mrs. Hayden as executor of the will. The estate disposed of by the will was of the value of $100,000 and upward; the only portions of that estate not to be inherited by Mrs. Hayden under the will were two sums, one of $500 and one of $100, the first bequeathed to a cousin of the deceased, and the second amount bequeathed to one of his employees. ■ The will as offered stated that it made no provision for the three children (who are the contestants) because they had been substantially taken care
On this appeal there is raised first, a question that the order of the surrogate of Jefferson county sending the issues to the County Court for trial was defective in a matter of jurisdiction; the contention of the contestants in that regard is that such order was made prior to the giving of notice of the objections to the two legatees who, at the time of the making of the order, had not appeared in the proceeding. (Burr. Ct. Act, § 148; Matter of Ginty, 125 Misc. 158.) Such objection is disposed of by the fact that other counsel for the contestants (who were in this matter prior to the retention of the counsel who went on trial before the County Court) had consented to the matter being sent to the County Court. This left the contestants with no personal objection to such procedure; and the-two legatees had, prior to the hearing of the matter in County Court, waived notice of the filing of objections by contestants and consented to the probate of the will. The other questions raised on this appeal are as follows:
1. That the court had excluded the testimony of Nan Baron, a witness presented by the contestants, who was called to testify as to a telephone conversation that she had with the deceased on May 24, 1939, she talking from Jersey City and the deceased being at Ms island home in the St. Lawrence river. Mrs. Baron had only once (eighteen years earlier) previously spoken to the deceased, and was not familiar with Ms voice. The contestants endeavored to connect her testimony by swearing Mrs. Powell, one of the contestants, for the purpose of having Mrs. Powell testify that she had called her father (the deceased) from Jersey City, had obtained Ms answer .and had then put Mrs. Baron on the telephone to talk to him. Such testimony of Mrs. Powell being given on her own behalf, was properly excluded by the trial court. (Civ. Prac. Act, § 347.) Thus there is no proof that Mrs. Baron was on that occasion speaking to the deceased. Therefore, there was no error in excluding the testimony of both Mrs. Baron and Mrs. Powell.
3. It is claimed by the contestants that the court erred in refusing to permit Mrs. Ruby Johnston Hayden to testify when she was called as a witness on behalf of the contestants. As has been stated above, this Mrs. Hayden and the deceased had lived together as husband and wife for some seventeen years; she had been with him on a visit to Arizona prior to the making of the will, and had resided with him at his island home and at his city home in Watertown for several years prior to the making of the will and at the time of his illness and death. It is claimed by the contestants that she necessarily knew about his condition of health, his conduct and his care by physicians and nurses for many years prior to his death, and that an examination of her by the contestants on the trial would have divulged matters favorable to them and unfavorable to the probate of the will, which matters were in reference to the health, conduct, care and company of the decedent prior to his death and at or about the time of the alleged execution and attestation of the last will and testament in question on this proceeding. The trial court permitted Mrs. Hayden to answer certain questions as to her husband’s life and conduct and care, but the questions so permitted to be answered were few in number and were on matters already in the record. There Was considerable discussion between the court and counsel on both sides as to the qualification of Mrs. Hayden to testify. The trial court finally determined the question as to the competency of the testimony of Mrs. Hayden by ruling (a) that she was incompetent by reason of the provisions of section 347 of the Civil Practice Act, and (b) that her testimony could not be received because it could not be binding on her cobeneficiaries under the will. On the latter ground of exclusion he cited section 373 of Richardson on Evidence, and Matter of Campbell (67 App. Div. 418). These last-mentioned citations state the rule that on a contest as to the
Because of the improper exclusion of the testimony of Mrs. Hayden, the decree of the Surrogate’s Court, from which appeal is taken, should be reversed and a new trial granted, with costs to the appellants, of the issues raised by the objections of the contestants.
All concur, except Crosby, P. J., not voting. Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.
Decree reversed on the law and a new trial granted, with costs to the appellants to abide the event.