FIRST DEPARTMENT, DECEMBER TERM, 1874. exclusion of the testimony of the witnesses as to the meaning of the sounds and motions made by the testator, was erroneous. (Clay v. Clay, 2 Ired. L. R., 79; Wheeler v. Alderson, 2 Hagg. Ecc. R., 574; De Witt v. Barly, 17 N. Y., 348; Orser v. Orser, 24 id., 51; Chaffee v. Baptist M. C., supra.) Henry L. Clinton and George F. Langbein, for the respondents, cited Clapp v. Fullerton (34 N. Y., 190); Delafield v. Parish (25 id., 9); Tyler v. Gardiner (35 id., 581); Lee v. Dill (11 Abbott, 214); Limburger v. Rauch (2 Abb. [N. S.], 279.) DANIELS, J.: The decedent departed this life at the city of New York on the 11th of October, 1873, aged about sixty-six years, having accumulated an estate valued at from $500,000 to $800,000. He was a native of Alsace, then a German province of France, and emigrated to this country in 1829. He was thrice married. The issue of the first marriage was three sons and one daughter. The latter died before her father, but the former, together with her seven children survived him. These sons and grandchildren all contest the validity of the instruments propounded as the will and codicil of the decedent. He was last married to the appellant. That marriage was solemnized on the 19th of September, 1871. At that time he had become considerably shattered and enfeebled in his health, which continued. to decline until the time of his decease. During the life of his first wife, and for a portion of that time, the appellant, who was her niece, was employed as a domestic servant in the family. In 1869, she again entered the household of the decedent in the same capacity; afterward becoming his housekeeper, and, finally, his wife. His second wife survived her marriage only about one year. She died in the year 1867. Shortly after his own decease, his last wife, the appellant, gave birth to a daughter, claimed by her to be the issue of her marriage with the decedent. He was a person of but little education, having simply acquired the ability to write his name and read figures. But before 1860 he was of firm, robust health, and, while he had the full control of his mental faculties, was a person of more than ordinary natural sagacity and judgment. During his life he drank freely, and was not uncommonly in a state of intoxication; and that habit of indulg FIRST DEPARTMENT, DECEMBER TERM, 1874. ing in the use of stimulants continued until very near the time of his decease. After his last marriage his health seems to have declined more rapidly than it previously had, and it continued to do so without any substantial interruption until the time he died. Subsequent to that marriage, but at what particular time was not shown upon the hearing in the Surrogate's Court, he made a will, drawn by Mr. Rosenstein, and called the Rosenstein will; and it was for the purpose of effecting certain changes in the disposition which that made of his property, and in the designation of an executor, that the will in controversy was drawn. That was done shortly before the 17th of June, 1873, when it was claimed to have been executed by the decedent. This will provided that his wife should have his dwelling in which they resided, known as No. 312 East Ninth street, in the city of New York, with the furniture, carpets, beds, glassware, plate, paintings and household utensils contained in it, and one-third of his personal property. And in addition to that it provided further, that she should have one-third of the rents of his real estate during her natural life, payable by his executors in monthly payments. These devises and bequests were then declared to be in lieu of dower. The residue of the personal estate was directed to be divided into four parts, one for each of his three sons, and the remaining fourth for his daughter's children; to be invested in real estate mortgages, and paid over to them as they attained the age of twenty-one years; and a similar direction was given concerning the residue of the rents of the real estate; each son to receive his proportion in monthly payments, and the share of the grandchildren to be invested and paid to them as they attained the age of twenty-one years. In case either child or grandchild died without lawful issue, the share of the deceased person was directed to be divided between the survivors. The real estate was not to be sold until the youngest grandchild, living at the decease of the decedent's wife, attained the age of twenty-one years; and the fee of that which should be then unsold was then to vest in the issue of his own children and the surviving children of his deceased daughter. The widow, her two brothers, Henry and George Hermann, and his son, Frederick Rollwagen, were nominated executrix and executors of the will; and power was conferred upon Henry Her FIRST DEPARTMENT, DECEMBER TERM, 1874. mann, one of the executors, to collect the rents of the real estate, and, after paying taxes, water-rates, assessments, repairs, and three per cent commissions on the gross amount collected, to deposit the balance as designated by a majority of the executors. These are the substantial provisions contained in the instrument propounded as the decedent's will. But they were so far changed by what was claimed to have been a codicil, executed on the 5th of September, 1873, as to give the widow four additional houses and lots on Avenue A, in the city of New York, and to provide that after-born children of hers should share equally in his estate with those specially named and provided for. In the course of the hearing before the Surrogate's Court, various questions arose concerning the admission and exclusion of evidence, which, it is urged in support of the appeal from the decree made, were erroneously decided. This evidence related chiefly to the constructions the witnesses, mentioning them, placed on motions made by, and sounds proceeding from, the decedent; statements made, that he "tried to talk;" "he made the same movement to me that he wanted me to read it;""he made signs and told me he was sick;" "I knew when he meant yes;" "he raised one hand and gave her a sign;" "he looked to her, and then he said to his wife with this voice;" "it made him put a smile on his lips; " and others of a similar nature, were stricken out of the testimony because they consisted of the expression of what the witnesses, stating them, inferred to be the fact from the motions and sounds made by the decedent. Witnesses were also asked whether Mr. Rollwagen indicated assent by his nod; whether the witness had become accustomed to the motions of his mouth and tongue, so as to be able to understand him; whether he knew the witness interrogated, every time he came to see him, in 1871, 1872 and 1873; whether he knew another when he went into the room; whether he shook his head in the manner people generally do when they say no; whether he understood, at the time referred to, all that took place; whether the witness knew, by his rolling his head and moving his eyes, that he wanted something; and other inquiries of the same nature. The answers to these questions were excluded by the court, because they necessarily embodied conclusions from facts, and not the facts themselves. Proof was also offered and excluded, to show FIRST DEPARTMENT, DECEMBER TERM, 1874. that Mr. Rollwagen knew what a witness came for, and directed the payment of money to him in every instance; that he understood an arrangement which was made concerning a certain check; that he could articulate so that the witness could understand what he said, and was able to convey to her his meaning; that he recognized another witness; whether it were possible for any person, other than the testator, to have signed his name to the will; that the attorney, in attending to the execution of wills, was careful to have them executed according to the statute. In excluding the answers to these and similar inquiries, and in striking out the answers which the witnesses gave, the court expressly held, that all the facts might be shown which it was supposed existed warranting the inferences and conclusions, so that the proponents were left at liberty to prove them, for the purpose of securing the benefit of the conclusions which might properly be indicated by them. This was all that they could reasonably ask for. With the exceptions of matters of science, art, skill, trade, navigation, value and other similar inquiries, witnesses are confined in their statements to facts observed and known by them, as distinguished from their opinions and conclusions. That is the general rule, and it seems to have been properly applied by the court during the hearing of this case. * It was not a mere technical application of the rule, but one which the nature of the controversy specially justified. For it was an important inquiry in the case, whether the testator was either physically or mentally capable of forming or expressing any intelligible purpose; and in its investigation, his actions and movements, and the sounds proceeding from his mouth, seemed to be the only means through which any rational conclusion could probably be reached upon that subject. The theory of the contestants was, that the decedent could neither express his thoughts nor convey his meaning, if any were even entertained by him; and for the purpose of properly trying its correctness, they were entitled to have facts proven, as distinguishable from the inferences and opinions the witnesses might be inclined to regard them as warranting. * Morehouse v. Mathews, 2 Com., 514; Van Deusen v. Young, 29 N. Y., 9; Messer v. People, 45 id., 1. FIRST DEPARTMENT, DECEMBER TERM, 1874. The court also excluded certain inquiries as to whether the decedent appeared or acted rationally. But that was not done, because evidence of that description was inadmissible. The inquiries were made of the contestants' witnesses, examined for the purpose of proving facts exhibiting the bodily and mental condition of the decedent. They did not fall within the province of a mere cross-examination; and they were objected to and excluded for that reason, but with a distinct intimation by the court, that the proponents could recall and examine the witnesses on that subject when they should resume the case. The exclusion was made because the evidence offered was not at the time in the orderly course of the hearing; not because it was inadmissible. The proponents were in no way injured by the ruling which was made, because they could secure all the advantage of the evidence offered, by placing the witnesses again upon the stand when they resumed the case. It was, in the end, their own fault, if pertinent evidence was excluded under these rulings. It was part of their case, and was not included within the limits of a mere cross-examination. * Nothing has been presented upon the rulings made concerning the admission or exclusion of evidence, which would justify a reversal of the decree. For that reason it will become necessary to examine the evidence which was given, in order to determine whether the court was right in rejecting either the will or the codicil; and, in making that examination and determining the effect of the evidence, the circumstance that the witnesses were personally before the surrogate, and observed as well as heard by him, must be allowed its appropriate weight. There is often very much in the manner, the appearance, the indications of feeling, as well as intelligence and acuteness of witnesses, which will aid the tribunal observing them in properly determining the credit due to their statements, and which cannot be exhibited by a mere return of what they may have sworn to. That advantage the surrogate had in the present case; and, in the conflicts and contradictions which existed in the evidence, it probably materially aided him in harmonizing and disposing of the different statements which were made by the witnesses. * Phila. and Trenton Railroad Co. v. Stimpson, 14 Peters, 448, 461; Houghton v. Jones, 1 Wall., 702. |