McLennan, P. J.:
The testimony is voluminous, twenty-five witnesses having been called by the plaintiff and about the same number by the answering defendants, but as we consider that certain objections and exceptions taken by the appellants to the admission of evidence, to which attention will be called, present reversible error, it is unnecessary to refer to the testimony in detail or at length. It is sufficient to say that it presents a fair question of fact as to each proposition submitted to the jury by the learned tidal court.
Cornelius Holland died on the 7th day of April, 1901, at the city of Auburn, N. Y., where he had resided for many years, being then about seventy years of age. He left an estate consisting of both real and personal jiroperty of the value of about $10,000, and left him surviving the plaintiff, Daniel M. Holland, the defendants [370]*370Nellie, Mary and Eugene Holland, his children and only heirs at law; also the defendant Elizabeth Holland, his widow and mother of his children. The other defendants are legatees or executors under the alleged will by which substantially all of his estate was devised to them. The deceased was married to the defendant Elizabeth Holland in the year 1869, and they lived together as husband and wife until about the year 1883, during which time the four children above named were born. Concededly the relations between the deceased and his wife and children were not harmonious, he claiming or asserting that his wife was unfaithful to him and that the children, or some of them, were not his. On the 23d day of January, 1883, as a result of the conditions which existed, a separation agreement was entered into between the deceased and his wife by which, among other things, she released all her interest in his property or estate, and at the same time, as a part of the agreement, he conveyed to her and to three of their children a farm upon which the family resided, which was effected by the execution and delivery of a deed of the same by himself and wife to one John Hogan, who in turn deeded it to said wife and children. At the same time the wife gave to Hogan a mortgage upon the premises to secure the payment of $1,000. After such agreement and transfers were made the deceased left his family, and thereafter, so far as appears, no relations existed between him and his wife or the three younger children.
Some evidence was given tending to show that for some years prior to the separation and down to the time of his death the deceased was irrational and incapable of making a valid testamentary disposition of his property. The learned trial court, however, properly determined that it was insufficient to establish that the deceased was irrational or incapable of transacting any business which did not involve his family or the consideration of the relations and obligations which he sustained to them. The proposition to which most of the testimony offered by the plaintiff was directed was that the decedent during all those years and at the time of the execution of the alleged will was laboring under an insane delusion with respect to his wife and children, which had no basis in fact, but was the result of a disordered or diseased mind, and that such insane delusion controlled and impelled him to exe[371]*371cute the instrument in question, by which his wife and children were to be precluded from sharing in his estate. The evidence indicates that the deceased conducted all business not involving the consideration of his family in a perfectly sane and rational manner and that his daily life and conversation was substantially normal except when his attention was directed to them. In support of plaintiff’s contention evidence was given which tended to prove that the belief expressed by the deceased that his wife was unfaithful and his children illegitimate was a delusion; was utterly without foundation ; that there was no act, conduct, report or even gossip which would justify it, but that, notwithstanding, it possessed and controlled him to such an extent that it led him to treat his family cruelly, completely alienated his affection for them ; caused him to use violence towards and threaten the life of his wife; to act in an unnatural manner, and even to contemplate self-destruction. The greater part of the evidence introduced on behalf of the plaintiff consisted of a narration of the acts and conduct of the deceased in and about his home, a rehearsal of conversations had with or directed to members of his family, and a description of his appearance and manner when in their presence; all of which evidence was pertinent and material and was given for the purpose of establishing the fact that the alleged insane delusion of the deceased completely dominated his actions and belief respecting his wife and children.
This class of testimony was permitted to be given by two of the decedent’s children, Daniel M. and Nellie Holland, who were parties to and concededly interested in the result of the action, notwithstanding it was objected to as being incompetent and improper under section 829 of the Code of Civil Procedure upon the ground that it constituted a personal transaction or communication between them and their deceased father. In each instance the objection was overruled, the evidence admitted and the appellants’ counsel duly excepted.
Daniel >1. Holland, the plaintiff, and decedent’s oldest son, was asked : “ Q. Shortly before you left the farm and came to Auburn with your father state what you saw your father do there at the farm which attracted your attention and which you took no part in and had nothing to do with yourself? * * * A. Well, I saw him go around and break most of the machinery that was left on the [372]*372farm, and I saw him take a corn knife and cut a calf with it underneath the belly. * * * Then I saw him roll a big rock up and throw it in the cistern to spring the bottom of it so it would leak, and then when he came away from the house the last thing he did was to get a small fire shovel and take some coals out of the stove and put them on the carpet and then put a rug that laid on the floor on top of the coals and left them that way, the coals of fire.”
The witness further said : “ He (the deceased) acted excited and nervous like and looked wild so that I was afraid of him.” “ I saw him take it (a revolver) out and he says to my mother, ‘ Do you want me to divide it with you ? ’ and he stepped around in front of her and he shot and shot by her and shot out the door; she was standing between him and the door; he shot twice. He pointed the revolver towards her on both occasions. My father did not say a word to me on that occasion, nor I to him. He said nothing to either of the other children on that occasion ; they were not there. Mother thezi left and went to her sister in Waterloo. She didn’t take the children with her at the time. They went to her after. Mother went away immediately without the children.”
The witness further states that at the time his father was “ very excited and nervous and he had a wild look and kind of a grin on his face and kept making motions all the time before he took the revolver out of his pocket and in the room where he kept his drawer locked up, bed room, then he came out and commenced sticking his hand in his pocket and pulled it out and then at last he put his hand in his pocket and pulled the revolver out; acted as if he was going to do it, and was kind of afraid to do it or something.”
Other occurrences of similar import were related by the witness. He was permitted to answer the following: “ Q.
Free access — add to your briefcase to read the full text and ask questions with AI
McLennan, P. J.:
The testimony is voluminous, twenty-five witnesses having been called by the plaintiff and about the same number by the answering defendants, but as we consider that certain objections and exceptions taken by the appellants to the admission of evidence, to which attention will be called, present reversible error, it is unnecessary to refer to the testimony in detail or at length. It is sufficient to say that it presents a fair question of fact as to each proposition submitted to the jury by the learned tidal court.
Cornelius Holland died on the 7th day of April, 1901, at the city of Auburn, N. Y., where he had resided for many years, being then about seventy years of age. He left an estate consisting of both real and personal jiroperty of the value of about $10,000, and left him surviving the plaintiff, Daniel M. Holland, the defendants [370]*370Nellie, Mary and Eugene Holland, his children and only heirs at law; also the defendant Elizabeth Holland, his widow and mother of his children. The other defendants are legatees or executors under the alleged will by which substantially all of his estate was devised to them. The deceased was married to the defendant Elizabeth Holland in the year 1869, and they lived together as husband and wife until about the year 1883, during which time the four children above named were born. Concededly the relations between the deceased and his wife and children were not harmonious, he claiming or asserting that his wife was unfaithful to him and that the children, or some of them, were not his. On the 23d day of January, 1883, as a result of the conditions which existed, a separation agreement was entered into between the deceased and his wife by which, among other things, she released all her interest in his property or estate, and at the same time, as a part of the agreement, he conveyed to her and to three of their children a farm upon which the family resided, which was effected by the execution and delivery of a deed of the same by himself and wife to one John Hogan, who in turn deeded it to said wife and children. At the same time the wife gave to Hogan a mortgage upon the premises to secure the payment of $1,000. After such agreement and transfers were made the deceased left his family, and thereafter, so far as appears, no relations existed between him and his wife or the three younger children.
Some evidence was given tending to show that for some years prior to the separation and down to the time of his death the deceased was irrational and incapable of making a valid testamentary disposition of his property. The learned trial court, however, properly determined that it was insufficient to establish that the deceased was irrational or incapable of transacting any business which did not involve his family or the consideration of the relations and obligations which he sustained to them. The proposition to which most of the testimony offered by the plaintiff was directed was that the decedent during all those years and at the time of the execution of the alleged will was laboring under an insane delusion with respect to his wife and children, which had no basis in fact, but was the result of a disordered or diseased mind, and that such insane delusion controlled and impelled him to exe[371]*371cute the instrument in question, by which his wife and children were to be precluded from sharing in his estate. The evidence indicates that the deceased conducted all business not involving the consideration of his family in a perfectly sane and rational manner and that his daily life and conversation was substantially normal except when his attention was directed to them. In support of plaintiff’s contention evidence was given which tended to prove that the belief expressed by the deceased that his wife was unfaithful and his children illegitimate was a delusion; was utterly without foundation ; that there was no act, conduct, report or even gossip which would justify it, but that, notwithstanding, it possessed and controlled him to such an extent that it led him to treat his family cruelly, completely alienated his affection for them ; caused him to use violence towards and threaten the life of his wife; to act in an unnatural manner, and even to contemplate self-destruction. The greater part of the evidence introduced on behalf of the plaintiff consisted of a narration of the acts and conduct of the deceased in and about his home, a rehearsal of conversations had with or directed to members of his family, and a description of his appearance and manner when in their presence; all of which evidence was pertinent and material and was given for the purpose of establishing the fact that the alleged insane delusion of the deceased completely dominated his actions and belief respecting his wife and children.
This class of testimony was permitted to be given by two of the decedent’s children, Daniel M. and Nellie Holland, who were parties to and concededly interested in the result of the action, notwithstanding it was objected to as being incompetent and improper under section 829 of the Code of Civil Procedure upon the ground that it constituted a personal transaction or communication between them and their deceased father. In each instance the objection was overruled, the evidence admitted and the appellants’ counsel duly excepted.
Daniel >1. Holland, the plaintiff, and decedent’s oldest son, was asked : “ Q. Shortly before you left the farm and came to Auburn with your father state what you saw your father do there at the farm which attracted your attention and which you took no part in and had nothing to do with yourself? * * * A. Well, I saw him go around and break most of the machinery that was left on the [372]*372farm, and I saw him take a corn knife and cut a calf with it underneath the belly. * * * Then I saw him roll a big rock up and throw it in the cistern to spring the bottom of it so it would leak, and then when he came away from the house the last thing he did was to get a small fire shovel and take some coals out of the stove and put them on the carpet and then put a rug that laid on the floor on top of the coals and left them that way, the coals of fire.”
The witness further said : “ He (the deceased) acted excited and nervous like and looked wild so that I was afraid of him.” “ I saw him take it (a revolver) out and he says to my mother, ‘ Do you want me to divide it with you ? ’ and he stepped around in front of her and he shot and shot by her and shot out the door; she was standing between him and the door; he shot twice. He pointed the revolver towards her on both occasions. My father did not say a word to me on that occasion, nor I to him. He said nothing to either of the other children on that occasion ; they were not there. Mother thezi left and went to her sister in Waterloo. She didn’t take the children with her at the time. They went to her after. Mother went away immediately without the children.”
The witness further states that at the time his father was “ very excited and nervous and he had a wild look and kind of a grin on his face and kept making motions all the time before he took the revolver out of his pocket and in the room where he kept his drawer locked up, bed room, then he came out and commenced sticking his hand in his pocket and pulled it out and then at last he put his hand in his pocket and pulled the revolver out; acted as if he was going to do it, and was kind of afraid to do it or something.”
Other occurrences of similar import were related by the witness. He was permitted to answer the following: “ Q. Did you ever see your father and the little boy, Eugene, together; hear anything between them in which yon had nothing to do and took no part whatever? * * * A. I did; Eugene was a little fellow, probably three years old, and he wanted something from his father, and I can’t just remember what it was, and his father told him to go away, that he was no boy of his, so he got that idea in his head that his father thought he wasn’t his boy or something; he used to follow him around quite often and he would say, ‘ Pa, I is your boy,’ he would say ‘ go away from me, you ain’t; no, you’re not mine.’ He [373]*373would say, ‘ Well, I is, just the same,’ and used to follow him around quite often that way and then cry about it, the young one would, and go in to his mother and say, ‘ Pa says I ain’t his hoy.’ ”
The witness was also permitted to testify that he never saw his father caress or take upon his lap either the little boy Eugene or his sister Mary.
Nellie Holland was also permitted to give considerable evidence of the same general character. She testified, when asked whether she ever observed anything on the part of her father that attracted her attention either at the Baker farm or at the Swamp farm, “ Why, of course, it was such a common occurrence, I noticed him excited and my mother afraid of him; she was crying; of course I was quite young and I don’t remember any particular incident; I remember an instance when he came from the field to the house and went through the house; I have seen him do that and he was very excited all the time, specially — I never saw him only (when) some men came to the well for a drink, or some agent came to the door, on some occasion like that; he would come to the house and get excited, but he never said anything in , particular to my mother; but he always went through those motions and grinning at her. I can’t say I really ever heard him accuse her.”
The evidence adverted to—-and there was considerable more of the same tenor — was incompetent and improper because within the inhibition of section 829 of the Code of Civil Procedure.
In Holcomb v. Holcomb (95 N. Y. 316) the rule is stated in the head note
In that case, which involved the validity of an instrument executed by the deceased, two witnesses, sons of the testator, were allowed to give evidence as to what they saw of him at the time of its execution. They were permitted to state what his appearance was; that he did not spealc to either of them; that he did not open his mouth. Each testified to a mental and bodily condition of the assignor, as indicated by conduct which they observed and by his absolute inattention to them and their remarks, which showed that he did not comprehend the nature of the act which was the subject of investigation. It was held that such testimony was incompetent and prohibited by the section of the Code of Civil Procedure referred to, the witnesses being interested parties. Another'witness similarly situated was asked: “ State what you heard your father saying or doing, or what you heard your father say when it was not addressed to you ? ” And the witness answered: “ I have often heard him talking to himself and carry on conversations the same as though he was talking to somebody, and there was nobody in the house; that was in the room he occupied. I listened to hear what he was saying.”
It was held that the evidence was incompetent and improper. The court said: “ His (the witness’) testimony is not made admissible because his father did not solicit the interview, and was even ignorant of his presence. The words when spoken became a communication which he received. It was then a communication to him.” Further in that case another witness was permitted to say: “ I recollect of meeting my father on the road just below Big Hollow, within two or three years of his death. I was in a wagon and he Oxi foot, walking. I saw him ahead; he was tottering along feebly. I stopped my horse and spoke to him, and he kind of stared at me. * * * I don’t think he knew me.”
It was held that all of such evidence was incompetent. The Holcomb case has been cited with approval in many of the most recent decisions of th.e Court of Appeals, involving the interpreta[375]*375tion of section 829 of the Code of Civil Procedure, and it must be regarded as stating the correct rule applicable to the admissibility of the evidence adverted to.
In Matter of Eysaman (113 N. Y. 62) the head note is as follows : “ This rule excludes not only testimony of transactions directly between the witness and the deceased, and communications made by the latter to the former, but of any transaction between the deceased and others in any portion of which the witness participated, or any conversation in his hearing, although not with or addressed to him; also any testimony as to the acts and conduct of the testator observed by the witness tending to show mental capacity.” (See, also, Gambee v. Gambee, 24 App. Div. 446.)
If the deceased had said to either of the witnesses, Daniel M. or Nellie Holland, that he was going to shoot, or attempt to shoot, their mother, it would not be claimed that they would not be precluded by section 829 of the Code of Civil Procedure from testifying to such conversation, although it might be very cogent proof of his insanity. Such evidence would be excluded because it was a personal communication between the deceased and the witnesses, and so, although they made no reply or took no part in the conversation. The transactions detailed by the witnesses were in effect the same. The father, instead of declaring his intention by words, fully expressed it by his acts in taking the revolver out of his pocket, pointing it toward the mother and firing. Not only were the witnesses permitted to state what the deceased did, but they were allowed to say that he seemed excited and nervous; that he had a wild look, all tending to establish the proposition that he at the time was insane or irrational.
It is concluded that the evidence to which attention has been called was within the inhibition of the statute; that it cannot be said it was not harmful to the appellants, and that, therefore, its admission over defendants’ objection constitutes reversible error.
The widow of the deceased was permitted to testify under defendants’ objection that when she executed the mortgage to John Hogan, which was a part of the transaction which resulted in the separation- agreement entered into by the deceased and his wife, she did not receive the $1,000 which the mortgage was given to secure, nor any part of it. The inference to be drawn from such testi[376]*376mony is that the deceased, instead of deeding the farm to her and her children free and clear from all incumbrance as indicated by his conveyance, in fact conveyed it incumbered for $1,000; that he and not his wife received the consideration of the mortgage from Hogan, the mortgagee. Giving the mortgage to Hogan was a part of the transaction between the witness and the deceased, and it was not competent for her to testify in respect to any part of such transaction. „
Attention has been directed to several other exceptions of similar character taken by the appellants during the course of the trial, but as the judgment and order appealed from must be reversed because of the admission of the evidence referred to, we deem it unnecessary to discuss them.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellants to abide event.
See 95 N. Y. (Banks’ ed.) 352.— [Rep.