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In the Matter of Proving the Last Will and Testament of Mary Oates, as a Will of Real and Personal Property. John T. Oates, Contestant, Appellant John Macklin
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
[680] contestant 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.