Appellate Division of the Supreme Court of New York, 1916

In re Proving the Last Will & Testament of Oates

Appellate Division of the Supreme Court of New York · Decided February 28, 1916

171 A.D. 679; 157 N.Y.S. 646; 1916 N.Y. App. Div. LEXIS 5329

Counsel

Richard J. Donovan [Herbert D. Cohen with him on the brief], for the appellant., John Q. Clark, for the respondent.

Opinion of the Court

Per Curiam:

A subscribing witness to the will, on the trial of the issue of testamentary capacity, gave his opinion that the testatrix was of sound mind. The contestant laid a foundation for impeachment by asking him if, at a given time and place, and in the presence of a specified person, he did not express a contrary opinion; to which inquiry he replied in the negative. The *680contestant then called the specified person to prove that at the time and place named, and in his presence, the subscribing wit- ' ness said that the testatrix was of unsound mind. The learned trial court excluded this evidence. In doing so it committed reversible error. (Patchin v. Astor Mutual Insurance Co., 13 N. Y. 268; Larkin v. Nassau Electric R. R. Co., 205 id. 267; Waterman v. Chicago & Alton R. Co., 82 Wis. 613, 629; Sanderson v. Nashua, 44 N. H. 492, 494; Greenl. Ev. [15th ed.] § 449, p. 596.)

The decree of the Surrogate’s Court of Richmond county should be reversed, and a new trial ordered, costs to abide the event.

Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.

Decree of the Surrogate’s Court of Richmond county reversed, and new trial ordered, costs.to abide the event.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.