In re Potter's Will

• Decision Date: 28 November 1899
• Citation: 161 N.Y. 84,55 N.E. 387
• Parties: In re POTTER'S WILL.
• Court: New York Court of Appeals Court of Appeals

161 N.Y. 84

55 N.E. 387

In re POTTER'S WILL.

Court of Appeals of New York.

Nov. 28, 1899.

Appeal from supreme court, appellate division, Third department.

Proceedings for the probate of the will be Orra Potter, deceased. From an order of the appellate division affirming a surrogate's decree admitting the will to probate (45 N. Y. Supp. 563), William P. Potter and others appeal. Reversed.

J. B. McCormick, for appellants.

C. H.

Sturges and Jurden E. Seeley, for respondents.

BARTLETT, J.

The decree admitting the will of Mrs. Orra Potter to probate is attacked upon the ground that the learned surrogate rejected competent and material evidence on the trial before him. The facts surrounding the controversy have an important bearing upon this question. The testatrix was nearly 89 years of age at the time she executed this will. She left, her surviving, seven children,-four daughters and three sons. The residuary legatees are her son Seaman G. and her daughter Caroline M. A trifling legacy of personal property is given to her son John D., and to his wife a cash legacy of $50. She gives to the wife of Seaman G. a legacy of $100 in cash, and to her residuary legatee Caroline M. Potter the residue of her household furniture, wearing appearel, etc. It thus appears that three daughters and one son take nothing under the will. They are the contestants in this proceeding. It was proved that the testatrix lived in the same house with her son John D. Potter, and her unmarried daughter Caroline M. Potter. Her son Seaman G. Potter resided within a few rods of John's house. The contestants attack this will upon the grounds of undue influence on the part of the children with whom the testatrix resided or was brought into immediate and constant contact. Mental incapacity is also charged. In support of the issues, the contestants' counsel called to the stand Seaman G. and Caroline M. Potter, presumably hostile witnesses, and sought to prove by them conversations with the deceased prior to the execution of the will, and which tended to show improper influence on their part over the free will of the testatrix. Many questions were addressed to these witnesses by the counsel for the contestants, seeking to draw out the substance of these conversations, but objections to them were uniformly sustained on the ground that the evidence was incompetent, under section 829 of the Code of Civil Procedure. As these witnesses were not called in their own behalf or interest, but were testifying against their interests, it is clear that this evidence was improperly rejected. Bank v. McCarty, 149 N. Y. 71, 84,43 N. E. 427;Carpenter v. Soule, 88 N. Y. 251, 257. The learned appellate division affirmed this decree of the surrogate by a divided court, the prevailing opinion holding, substantially, that, while the evidence was improperly rejected, the contestants were not necessarily prejudiced thereby, and therefore the decree should not be reversed; citing Code Civ. Proc. § 2545. By that section it is provided that a decree upon the trial of an issue of fact ‘shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.’ The opinion goes on to state that it was incumbent upon the exceptant to have the case show, in substance, by way of offer or otherwise, what the rejected evidence was, as only in that way could it be made to appear whether or not there was prejudice to his case.

It was also suggested that the contestants did not avail themselves...