Phillips v. . McCombs

Rapallo, J. The referee found that the legacy of $300 was inserted in the will for the purpose of paying the testa *496 tor’s .debt of $300 to his son Madison, and that such arrangement, for the payment of the debt, was made with the consent and approval of Madison, and was satisfactory to him, and that, when the legacy was paid by the executrix, it was paid by her and accepted by him as payment of the debt. This finding was based upon evidence of the declarations of Madison that his father had agreed to pay all he owed him in two years from the time of his death, and that on coming out of his father’s room, Madison said to his mother that his father had done right by him, that he had left it in his will to pay him two years after his death; also upon evidence, that when the will was drawn, the testator stated to the scrivener who drew it that Madison claimed $300 for labor, and that he, the testator, wanted the legacy in the will, for the reason that it would give Mrs. McCombs two years to pay it. The debt being due, and the legacy being payable two years after the testator’s death, no legal presumption arises upon the face of the will that the legacy was intended as a payment of the debt. (Story’s Eq., §§ 1121, 1122.) The executrix, therefore, attempted to establish, by extrinsic evidence, either-an intention of the testator that it should be a payment, or an agreement between the testator and the legatee that the $300 due the legatee should be paid by the legacy, and that the legacy was made in pursuance of that agreement. The declarations of the testator to the scrivener appear to have been much relied upon by the referee, as he makes them one of the prominent grounds of his decision. We concur with the court below that they were inadmissible for the purpose of showing the intention of the testator. The grounds upon which they were inadmissible for this purpose, are fully and clearly set forth in the opinion of Doolittle, J, at Special Term, and the authorities are there cited. The declarations were equally inadmissible for the purpose of establishing the agreement set up by the executrix, for, in "that aspect, they would be declarations of the testator in his own favor or in favor of his estate. The admission of this evidence was error, which justified *497 the court below in setting aside the report and ordering, a new trial, without regard to the questions whether the agreement, if proved, would have had the effect claimed, or the declarations or contracts of the idiot, made during the period overreached by the inquisition, though before it was found, were binding upon his committee. Any one material error in the decision of the referee is sufficient to constrain us to affirm the order granting a new trial. The order appealed from must be affirmed, and judgment absolute rendered against the appellant upon the stipulation. All concur. Order affirmed, and judgment accordingly.