Clark & wife v. Vorce & Vorce

19 Wend. 232

Opinion

By the Court,

Bronson, J.

I. The objection to Periander Vorce, as a witness to support the will, cannot be maintained. If he had any interest in the event of the suit, it was adverse to the defendants who called him. The present value of his legacy of $1000, payable in 20 years without interest, was considerably less than his portion of the real estate as heir at law, without any reference to his distributive share of the personal property. He was interested to overturn the will. The plaintiffs rely on Pyke v. Crouch, 1 Ld. Raym. 730, and Goodtitle v. Welford, Doug. 139. In the first case, the witness was a legatee, and in the second, he had a reversionary interest under the will; and it did not appear in either case that he was heir at law,

II. The question concerning the sufficiency of the evidence to prove what the deceased witness testified on am other trial, is substantially the same as it was when this case was before us on a former occasion. 15 Wendell, 193.

III. The evidence to show that the defendants had, supported and educated the two minor daughters of the testa tor since his death, was improperly admitted. It could have no legitimate bearing upon the matter in controversy; none is suggested by the defendants' counsel. It is impossible to say what influence it may have exerted on the minds of the jury, and the verdict must therefore be set aside.

IV. On a question of sanity, the contents of the will, as well as the situation of the testator and the circumstances under which the will was made, are proper subjects for the consideration of the jury. But I do not think the judge was bound to give a construction to the will, in a point not directly involved in the present controversy. Such a course would greatly embarrass trials, by unnecessarily multiplying the questions to be decided.

New trial granted.