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The opinions of witnesses not experts or sub- sions drawn from the sits or describing witnesses to a will, as to the mental

clarations of the deca ed sworn condition of a deceased person, to be competent, must be conclusions drawn from the

to by them. Any opinion they acts and declarations of deceased sworn to express must be formed on what by them.

they have seen or heard. 17 N. Y., To bring evidence as to a transaction or inter- 340 ; 34 id., 190; 36 id., 276 ; 42 id.,

view with a deceased person within the prohibition of $ 829, it is not necessary that 270 ; 86 id., 507. such transaction or interview was private or Also held, That there was error confined to the witness and deceased.

in disregarding the probibition of Reversing S. C., 17 W. Dig., 226.

S82) of the Code as to evidence of This action was brought to set personal transactions and commitaside an assignment of a bond and / nications between certain persons mortgage executed by A., plain- who were interested in the amount tiff's intestate, on the ground that involved in the action and the deH. was at the time of the execu- ceased. tion and delivery of unsound mind Under said section transactions and incapacitated to make the and communications embrace every same, and also on the ground of variety of affairs which can form undue influence on the part of de- the subject of negotiation, interfendant. The assignment was

views or actions between two perdated April 1, 1875, and acknowl- sons, and include every method by edged February 3, 1876, the day of which one person can derive imH.'s death. Many witnesses were pressions or information from the called by plaintiff, who gave their conduct, condition or language of opinion as to the mental condition another. It must appear that the of the assignor and testified as to interview or transaction sought to his transactions and conversations. be excluded was a personal one; The opinions given by these wit it need not have been private or nesses were not conclusions drawn confined to the witness and the defrom the acts or declarations testi. | ceased. 82 N. Y., 619; 26 id., fied to by them. These witnesses 264; 36 id., 327; 59 id., 336; 2 were not experts, and were many | Abb. N. C., 1. of them members of H.'s family, Judgment of General Term, and would share in the avails of a affirming judgment for plaintiff, judgment if one was recovered. reversed, and new trial granted.

R. E. Andrews and Joseph Hal. | Opinion by Danforth, J. All lock, for applt,

J. A. Griswold, for respt.

Held, That the evidence was not WILLS. EVIDENCE. competent as to the mental con

N. Y. SUPREME COURT. GENERAL dition of H. The opinions of wit- TERM. FOURTH DEPT. nesses not experts or subscribing witnesses to a will, as to the men

In re probate of the will of Timtal condition of a deceased person,

othy Clark, deceased. must, to be competent, be conclu- Decided Jan., 1884.


Violent reproaches and angry threats made by home against testator's wishes. testator's wife when he was on his death When the will was read Mrs. Clark bed excet, the limits of due influence which she migật rightfully have used to in angrily denounced its provisions duce her husband to dispose of his property in violent terms. Fitzgerald, the as she wished.

lawyer, whose testimony is unconWhen acts of undue influence are proved de tradicted, testified that she said clarations of the testator are proper evidence Clark had no right to cut off one to show the operation such acts had upon his mind.

of his boys, and she wouldn't stand Appeal by Ann Decot from Sur- . it; that no person should come to rogate's decree admitting said will the house to witness such a paper to probate, on the ground of coer

as that; that he was out of his cion and undue influence by testa- head and had been for several tor's wife.

months, and she could prove it; Testator died November 19, 1882, Clark laughed and said she knew leaving his widow, and Mary better than that; she said if he Flynn, Michael Clark, Catharine made that will she would break it Gowan, appellant, and Frank any way, and squander all the Clark, his only children and heirs. property in doing so ; that he had at-law. His daughters were mar- only a few days to live, and she ried and lived away from home. would curse him and dance on his It does not appear that they had grave. The same witness testified: received any provision from their "Clark finally changed his mind father, except their wedding dres and decided to have another will ses. Michael, with his family, drawn; I made another memoranlived with his father, and Frank dum there; Clark and his wife had lived away from home. The both gave directions ; she would will was made September 5, 1882. suggest and he wonld assent by Testator had then been long sick, word or motion of head; she wishand was very low. The priest had ed Frank to have as inuch as been called. His wife suggested Michael ;

she said the to him to make a will, and sent for girls had been taken care of well a lawyer, who had a private inter- enough and had had all they were view with testator, and went to his entitled to; I don't know as she office and drew a will according to said anything about herself, extestator's instructions. Returning, cept she spoke of her thirds before he read the will to Clark in his this; Clark himsell insisted on a wife's presence. That will gave legacy of $500 to Decot's boy ; the bulk of the property to Michael, Mrs.Clark first objected, but finally $500 to each of two grandchildren, assented; he also wanted to leave $400 to each of his daughters, the the same amount to Michael interest of one-third of his prop- Flynn's boy; she opposed that; erty to his wife, and nothing to she said he had other grandchil. Frank. Testator had previously dren as much entitled as they to declared his intention of cutting legacies; he yielded as to the Frank off because he had left Flynn boy, but insisted as to the

Vol. 18–No. 24.

other, for the reason that he had acts and words of the wife, or promised him a lot and would give whether it was testator's voluntary him a legacy in place of it, as the act. 66 N. Y., 148. . lot had been sold. Clark also Decree reversed, and the queswished the rents of the store ap- tion whether the execution of the plied in payment of floating debts; will was procured by undue influshe made no objection to that.” ence ordered to be tried by a jury Fitzgerald drew the second will at circuit, costs of this appeal to and read it to Clark in the pres- abide event. Code, SS 2588, 2589. ence of his wife, and each said it Opinion by Smith, P. J.; Har. was right. That will, which is the din, J., concurs. one admitted

to probate, gave $500 to appellant's son; to testa

INJUNCTION. CORPORAtor's wife the use of all the real

TIONS. estate during her life, in lieu of dower, except that the store rents N. Y. SUPREME COURT. GENERAL should be first applied to pay debts, TERM. FOURTH DEPT. and gave the entire real estate,

William H. Abell et al., respts., after his wife's death, to his two

v. The N. Y., L. & W. RR. Co., sons equally. Testator had no op

applt. portunity to change, without his wife's knowledge, the provisions

Decided Oct., 1883. of this will, which she kept till his A corporation may be fined for violating an death. The contestants called a injunction. son-in-law of the testator to prove

Where a corporation has knowledge, through declarations of the testator, made

its officers, agents and servants, that an inNovember 13, 1882, as bearing on

junction order has been issued against it,

and thereafter performs some of the acts the question of undue influence, restrained thereby, it is liable therefor but the Surrogate refused to re- although the order was not served in strict ceive the testimony except as to

regularity. the question of testamentary capa- Appeal froni order of Special city.

Term of the Superior Court of George Bowen, for applt.

Buffalo imposing a fine on defendWillam Tyrrell, for respts.

ant for violation of an injunction Held, That the finding of the order. Surrogate must be set aside, be- The injunction was granted to cause the question is, to say the restrain defendant from tearing up least, serious, whether the second the street in front of plaintiff's will, so far as it differed from the lands, and was served on one H., first, was not procured by undne who was found by the Special influence by the wife.

Term to be a managing agent of The declarations offered were

were defendant within the terms of competent evidence upon the ques. $ 431, Code Civ. Pro. Some acts tion whether the making of the in violation of the order were comsecond will was the result of the 'mitted after such service.


Bowen, Rogers, Locke & Whee- Decided Oct., 1883. ler, for applt.

Under an order referring an administrator's Spencer Clinton, for respts. account to a referee to examine and report

Held, No error. Whether the it is the duty of the surrogate to consider finding aforesaid was correct we

the exceptions filed to the report and deter

mine the questions presented thereby. need not consider, as defendant, through its officers, agents and Appeal by the administrator servants, had knowledge that the from a decree settling his accounts injunction order had been issued, and from an intermediate decree and thereafter performed some of confirming report of a referee. the acts which the order restrained The administrator filed his acdefendant and its servants from count with the surrogate, and oh. performing, and therefore it must jections thereto having been filed indemnisy plaintiffs whether the the surrogate ordered “that said injunction order was served in account and objections be referred strict regularity or not. Some to

as referee to examine acts were committed after the ser- the same

and to make report vice of the order on H. and after thereon to this court." knowledge of the order

The referee made a report after brought to the attention of the taking evidence, and after hearing attorneys of defendant, and it was objections made rulings as to eviproper therefore to impose upon dence and as to various questions defendant such sum as would in- arising on the hearing. Exceptions demnify plaintiffs. 4 Paige, 405; to the referee's report, both as to 3 Ed. Ch., 238, and note; 23 How., his findings of law and fact were 3; 34 id., 202; 64 N. Y., 622. made and served. On motion to

A corporation may be fined for confirm the counsel for the adminviolating an injunction. 64 N.Y., istrator requested the surrogate to 622.

rule upon the several objections Facts were shown sufficient to and exceptions taken on the hearcall upon the court to exercise its ing and filed. This the surrogate discretion, and we see nothing in refused to do, and made an order the papers before us to indicate of confirmation and also the decree that the discretion was improperly in question. exercised.

Volney Simpson, J. D. Gaskell Order affirmed, with costs. and Levi F. Bowen, for applt.

Opinion by Hardin, J.; Barker A. K. Potter, for creditors, and Dwight, JJ., concur.


Held, Error. Under the order of SURROGATES. REFERENCE.

reference to "examine and to re

port thereon” to the surrogate's N. Y. SUPREME COURT. GENERAL

court the surrogate had the power TERM. FOURTH DEPT.

and it was his duty to examine In re accounting of James A. the evidence and the report thereof Pool, admr., applt.

and to consider the exceptions

filed to the report and to determine In an action to reform a policy of life insurthe questions presented thereby

ance by conforming it to the agreement

entered into between the parties, it is not for his review and consideration.

necessary that the policy should be set Such was the practice under the forth in the complaint or annexed to it as R. S. in respect to reports made by an exhibit, it may be pleaded by stating its a referee in cases of rejected claims

effect ; but so much of the policy as is referred under the statute. Such

sought to be reformed must be set forth

accurately, and also the particular reformawas the practice in respect to pro- tion sought. ceedings had before an auditor. 74 N. Y., 476. He had control of Appeal from a portion of an the proceedings and before passing order denying a motion to make upon the report in gross should the complaint more definite and have considered the rulings made certain. by the referee and the exceptions The complaint in this action altaken to his report in detail. leged that the defendant “by its Code Civ. Pro., S 2546.

officers and agents" made certain Order and decree reversed, and false representations by which proceedings remitted to surrogate plaintiff was induced to take out with directions to proceed, costs to a certain kind of policy of insurappellant payable out of fund. ance, and the action was brought

Opinion by Hardin, J.; Barker to recover damages caused by such and Dwight, JJ., concur.

alleged false representations, and also to have the policy conformed

to the agreement entered into be. PLEADING.

tween the parties, and which it N. Y. SUPREME COURT. GENERAL

was claimed that the policy did not accurately express.


dant moved to make the complaint Pierre L. Schellens, respt., v. more definite and certain in the The Equitable Life Assurance So- following particnlars among othciety of the United States, applt. ers, (1) by specifying the particular Decided March 7, 1884.

officers and agents by whom the

alleged false representations were The proper form of allegation in a complaint made, (2) by setting forth the con in an action against a corporation for false

tents of the policy or by annexing representations is that such representations were made by the defendant, and not that

it to the complaint as an exhibit, they were made by the defendant “ by its (3) by setting out and indicating officers and agents.”

the changes which the plaintiff If the complaint is drawn in the latter form,

desired to have made in the policy, the plaintiff will be required to make it more definite and certain by declaring and how he wished the policy to specifically the particular officers or agents read when so changed. The motion by whom he claims such representations was granted as to the third parwere made.

ticular, but denied as to the first In such a case the proper remedy is a motion

to make the complaint more definite and and second, the Court holding certain, and not for a bill of particulars.

that, as to the first, the proper

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