In re Probate of Last Will and Testament of Potter

Merwin, J.: The question upon this appeal arises upon exceptions taken during ' the course of the trial to rulings upon the admission or rejection of evidence. (Matter of Hood, 104 N. Y. 103, 106.) [268] The decedent, at the time of her death, was about eighty-nine years of age. She left seven children her sole heirs and next of kin. Four of these children, to whom nothing was given in the will, contested its probate upon the grounds of undue influence and incompetency. The main part of the property was given to two of the children, Caroline Potter and Seaman G. Potter, who were named as residuary legatees. The contestants called as witnesses on their behalf both of .the residuary legatees,, and the exceptions chiefly relied on occurred in the ■course of their examination.' They sought to prove by Caroline Potter conversations between her and the deceased with reference to making the will. It was objected by the proponents that the witness was incompetent, under section 829 of the Code, to testify as to transactions or communications with the deceased, and the court so held. This ruling was subsequently relaxed to the extent of allowing the witness to testify to what she said to the deceased, but excluding the statements of the decedent. The'contestants did not accept the limitations. The contestants also sought to prove by Seaman G. Potter like conversations between him and the deceased, and a like ruling was made as to his testimony. These witnesses were not sought to be examined in their own behalf or interest. Their interest was to have the will proved, and they were called on behalf of the contestants. The provisions of section 829 did not, therefore, apply, and the court erred in excluding or limiting their testimony. (Albany Co. Sav. Bank v. McCarty, 14-9 N. Y. 71, 84.) The case of Matter of Will of Dunham (121 N. Y. 575), cited by the respondent,, does not sustain their position. There the residuary legatee under a will was called as a witness by parties who contested a codicil which; if established, diminished the amount which would otherwise go to the residuary legatee. The latter was, therefore, called in his own interest, and so within the inhibition of the Code. It is, however, urged by the respondent that, if there was error in the rulings referred to, the appellants were not necessarily prejudiced thereby, and, therefore, the decree should not be reversed. (Code, § 2545.) By that section it is provided that a decree upon a trial of an [269] 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.” Under this provision, in case the error is in rejecting evidence, it is incumbent upon the exceptant to have the case show in substance, by way of offer or otherwise, what the evidence is that is rejected. Only in this way can it be made to appear whether or not the exceptant is necessarily prejudiced. In the present case the contestants offered to prove by the witness Caroline Potter that, prior to the making of the will, she had conversations with the deceased and directed her how she wanted the will made, and that it' was made in accordance with the instructions and views of the witness. The court permitted the contestants, to show by the witness that she gave instructions to the decedent, how she should make the will, and that it was made in conformity with such instructions, limiting, however, the answer of the witness to what she said to the testatrix and excluding statements of the testatrix. The contestants did not avail themselves of the permission given and did not attempt to show what the witness said to the-testatrix. The witness had previously testified that she had no conversation with the testatrix upon-the subject of the will before it-was executed. The court also, in the course of the examination of the witness, ruled generally that the contestants would be permitted to show any undue influence exercised on the part of this witness-upon the testatrix, if any existed. The witness Seaman G-. Potter-testified that he had several conversations with his mother upon the subject of the will before it was executed and was asked to state-them. The court, in its ruling, held that he might state what he-said to his mother on the subject of any directions as to making her will or serving to influence her in the execution of the will,, but excluded statements of the testatrix herself. The contestants did not attempt to show what the witness said to his mother, or make-any offer of what they expected to prove. The contestants, therefore, had -opportunity to examine the witnesses on the subjects in regard -to which they were interrogated,, except .as to the statements of the testatrix herself. On the issue of' undue influence, the important thing was to ascertain what the [270] witnesses said or did, and that the -contestants' were permitted to inquire about. On the part of the appellants it is argued, that, although the modified ruling may have cured the error in the original ruling, so far as the question of undue influence was concerned, it- still was important to have in evidence the statements made by the ' testatrix as bearing upon .her mental competency or as furnishing a basis for expert evidence on that' subject. That object- was hot suggested at the trial, and there is nothing' indicating what the . contestants expected to prove that the testatrix said, which would be pertinent or beneficial, to them on the issue of mental competency. ISTor was there any evidence' given by the contestants that tended . to show such in competency. The course of the trial furnishes ground for the inference that the issue of undue influence was the main if not the only one; in the case. In the absence of any information, by express statements or fair inference, as to what the evidence was that the erroneous ruling operated to exclude, how can it be said to appear that the ruling was necessarily prejudicial to the appellants ? In some cases it has been said that'the error must be such' that, in its absence,, a different result would have been reached (Snyder v. Sherman, 88 N. Y. 656; Loder v. Whelpley, 111 id. 247), or at least a reasonable doubt on the subject. (Matter of Smith, 95 id. 516.) Under the circumstances of this-case it does not, I think, appear that the' appellants were necessarily prejudiced by the erroneous rulings.. Error is claimed • in excluding evidence of the contents of a- prior will. It' was not, however, shown that such will was. lost or destroyed, and so secondary evidence of its contents was not admissible. (In re Smith's Will, 15 N. Y. Supp. 425.) It was not error to allow the subscribing witnesses to- testify as to the apparent mental condition of the testatrix at the time of the execution of the will (Clapp v. Fullerton, 34 N. Y. 190; Redf. Surr. Pr. [5th ed.] 184, and cases cited.) It follows that the decree should be affirmed. All concurred, except Putnam, J,, dissenting.