(91 Hun, 165.)

#### JOHNSON v. COCHRANE et al.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

1. Wills—Competency oe Testator—Evidence Considered.

A finding that testator was incompetent to make a will is sustained by evidence that he made the will only two weeks before he died; that he had suffered two strokes of paralysis, the last but eight months before his death, from which time until his death he deteriorated materially, both physically and mentally; and that four or five days after making his will he became violently insane, and remained so until his death.

*284
      *%*Same—Action to Determine Validity of Probate.

The requirement of Code Civ. Proc. § 2653a, that in actions to determine the validity of wills the complaint shall be filed with the clerk of the court, who shall certify the fact to the clerk of the surrogate’s court, whereupon the surrogate shall transmit to the trial court a copy of the will and proceedings thereon, is not jurisdictional, and a failure to comply with them cannot be attacked by motion to dismiss.

3. Same—Evidence—Competency of Witness.

In an action to determine the validity of the will, the wife of a devisee, who is made a defendant with- her husband on account of her contingent dower interest in the land devised to him, is incompetent to testify, as a witness on behalf of the defendants, to a conversation with testator, under Code Civ. Proc. § 829, providing that a person interested cannot be examined as a witness to such transactions in his or her own behalf.

4. Evidence—Opinion of Layman.

A layman should not be permitted to give his opinion as to the sanity or insanity of a testator, but he may state acts and conversations of such testator which are within his personal knowledge, and then state his opinion as to whether they were rational or irrational, or the acts and conversation of a rational or an irrational person.

5. Appeal—Review—Weight of Evidence.

The finding of a jury will not be set aside because of the admission of improper testimony, where, were it stricken out, the remaining testimony would justify the verdict.

Appeal from circuit court, Kings county.

Action by Matilda Gr. Johnson against William H. Cochrane and others to determine the validity of the probate of the will of Joseph H. Hamilton, deceased. The paper admitted to probate was adjudged not the will of decedent, and defendants appeal.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Hugo Hirsh, for appellants.

M. L. Towns, for respondent.

BROWN, P. J.

Joseph H. Hamilton died in the city of Brooklyn on November 11,1892, leaving a last will and testament, bearing date October 29, 1892, and leaving, surviving him, as his heirs at law, the plaintiff and the defendants, Elizabeth Stocking, Mary H. Johnson, William Johnson, and William H. Cochrane. By his will, all the estate of said deceased, with the exception of $100, was given to the defendant William H. Cochrane. The plaintiff and the defendant Mary H. Johnson objected to the probate of the will, on the ground that the testator had not the mental capacity to make and execute the same; and, after a trial, the surrogate adjudged the will to be valid, and it was admitted to probate on March 1, 1893. Thereafter this action was commenced, under section 2653a of the Code of Civil Procedure (Laws 1892, c. 591); and, after a trial at the circuit, the jury found that the paper admitted to probate was not the will of said deceased, and from the judgment entered upon that verdict the defendants have appealed.

We are of the opinion that the verdict of the jury has ample support in the testimony. It appeared that the testator had had two attacks of paralysis prior to the execution of the will. The last was in March, 1892, and, from that date until his death, his physical and mental condition deteriorated materially. On November 2d or 3d he became violently insane, and remained so until his death, on No*285•vember 11th. It would serve no useful purpose to review the great amount of testimony contained in the record submitted to the court, and it is sufficient to say upon the merits of the case that the evidence permitted the conclusion reached by the jury, and we find no just or proper ground to interfere with the verdict.

Our attention has been called by the appellants to numerous exceptions appearing in the record, which it is claimed are fatal to the judgment, and require its reversal.

Before the' opening of the case, the defendants moved to dismiss the complaint, upon the ground that the plaintiff had failed to comply with the provisions of section 2653a of the Code, in that the complaint had not been filed with the clerk of the court, and that the said clerk had not certified to the clerk of the surrogate’s court the fact that this action had been commenced, and that the surrogate had not transmitted to the supreme court a copy of the will, testimony, and all papers relating thereto, and a copy of the decree of probate. This motion does not appear to have been made upon an affidavit or certificate of either the clerk of the supreme court or the clerk of the surrogate’s court,"and there was nothing before the trial court to show that the statute had not been complied with.

The record before us shows that all the papers enumerated in the motion, which the statute required should be transmitted .by the surrogate to the supreme court, were, immediately upon denial of the motion, put in evidence by the defendants. None of these facts were, however, jurisdictional, and none of them were required to be set forth in the complaint. The motion was not properly made at the trial, and had no relation to any of the issues raised by the pleadings. If the statute had not been complied with, the motion should have been addressed to the special term, to have the omission corrected. There was no ground for the dismissal of the complaint, and the motion was properly denied.

Minnie G-. Cochrane, the wife of the defendant William H. Cochrane, was called as a witness, and asked to testify to a conversation had with the testator in the month of October preceding his death. An objection that this evidence was inadmissible under section 829 of the Code was sustained, to which the defendants excepted. This ruling was correct. The witness was a party to the action, and, if the will was valid, acquired under it an inchoate right of dower in the real estate therein devised to her husband. She had appeared in the action, and served an answer setting up her interest in the land. Her testimony was therefore inadmissible under the 829th section of the Code, which declares that a party to an action shall not be examined as a witness in his or her own behalf. The appellants cite the case of Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. 1024, to sustain their contention that this testimony was admissible. But in that case the witness was not a party to the action, and the objection to the admission of her testimony was made upon the ground that she was interested in the event. The court held that a person was not “interested in the event” unless he would gain or lose by the result of the action, or had “an interest in the record for the purpose of evidence”; that the witness was not, within that rule, an inter*286ested person, and therefore her testimony was admissible. The case is not an authority upon the question here presented, as Mrs. Cochrane was a party to the action, offering to testify in her own behalf, and had a direct and certain interest in the result of the suit.

There were many lay witnesses called by the plaintiff, who, after testifying to conversations with and acts of the deceased, were permitted, against the defendants’ objections, to characterize such acts and conversations as irrational. The record presents very many exceptions to rulings upon this class of testimony, and they form a large part of the argument made by the appellants. The rule as to this class of testimony is well settled. A layman is not to be permitted to give an opinion as to the mental capacity of a testator, nor to say whether he was rational or irrational. But he may state acts and conversations of which he has personal knowledge, and then he may be permitted to state his opinion as to whether such acts and conversations were rational or irrational, or those of a rational or irrational person. Paine v. Aldrich, 133 N. Y. 547, 30 N. E. 725; Holcomb v. Holcomb, 95 N. Y. 316. We are of the opinion that nearly all of the rulings of the court were kept well within this rule, but in a few instances witnesses were permitted to answer questions which were probably objectionable. The answer to the question, “Did you ever see him act rationally from August until the last time you saw him?” should probably have been excluded. There are others to which the objections might possibly have been sustained, but we do not deem it necessary to refer to them.

It does not follow that the judgment should be reversed because some testimony was admitted which should have been excluded. In order to warrant a reversal, the court must be satisfied, upon an examination of the whole case, that the appellant was prejudiced. An appellate court will judge for itself the materiality of testimony improperly admitted; and, if it appears that the result would have been the same if the testimony had been excluded, the error arising from its admission furnishes no ground for the reversal of the judgment. People v. Fernandez, 35 N. Y. 59; McGean v. Railway Co., 117 N. Y. 219, 22 N. E. 957. There is abundant testimony in the record to sustain the finding of the jury if the testimony referred to is excluded from the case, and we think that it is impossible that the jury were controlled by the testimony of witnesses which characterized in a general way the conduct of the testator as irrational. Yearly all the testimony in the case appears to have been read to the jury from the record of the trial in the surrogate’s court. The statute permits this to be done where the witnesses are out of the jurisdiction of the court, or dead, or have become incompetent subsequent to the probate of the will. The case does not show upon what ground this testimony was read, but, so far as I have observed, only three or four witnesses were called to testify at the trial. We have assumed that the testimony was read upon stipulation, and that the objections and exceptions were taken at the trial; but, after a careful examination of the whole case, we are of the opinion that none of them require a reversal of the judgment.

The judgment must be affirmed, with costs. All concur.