The appellants, as heirs and next of kin of Orra Potter, deceased, contested the probate of her will on the grounds of incompetency and undue influence. On the trial, with a view of showing undue influence on the part of Caroline Potter and Seaman G. Potter, residuary legatees named in the will, the contestants called those parties as witnesses and sought to prove by them conversations had with the deceased in reference to making the will, and instructions given by them to the testatrix in that regard. The surrogate permitted the appellants to prove by said witnesses what they said in conversation with the deceased in reference to the will, but excluded the statements of the testatrix. It is shown in the opinion of Justice Mekwin that the rulings of the surrogate in excluding the statements of the deceased were erroneous. But he reaches the conclusion that it does not appear from the case that the appellants were necessarily prejudiced by the error of the surrogate, and that hence, under section 2515 of the Code of Civil Procedure, which ¡di-o vides that a decree in a Surrogate’s Court upon the trial of an issue of fact “ shall not be reversed for an error in admitting or rejecting evidence,, unless it appeal’s to the appellate court that the except-ant was necessarily prejudiced thereby; ” the error of the surrogate does not compel the granting of a new trial.
While Caroline Potter, one of the residuary legatees, was being examined as a witness on behalf of the contestants, the following offer and ruling was made :
“ Contestants offer to show by this witness that she was present when the will was made ; prior to the making and executing of the will she had talks and conversations with the deceased, and directed the deceased how she wanted this will made, and that it was made in accordance with the instructions and views of the witness, and that such talks and. conversations were had prior to the making and execution of the will and on the same day. * * * The court permits contestant’s counsel to show by the witness that she gave instructions to decedent how she should make the will, and also the fact that the will was made in conformity with such instructions, limiting the answer of witness as to what she said to the testatrix, but statements of testatrix are excluded. To the ruling of the court and limiting of the proof of the offer, contestants except.”
*272The following questions were asked and rulings made by the .surrogate on the examination of Seaman G-. Potter, álso a residuary legatee, and by- whom the contestants sought -to prove undue influence exercised by the witness in procuring the execution of the will: “Q, What direction; did you give her or she give you with reference to this will on this day? [Proponent’s counsel objects to so much of the question as relates to the direction given by him to her. Objection sustained. -Contestants except-.] Q. State what ■ conversations took .place between you and her upon the subject of making this will on that day or at any time prior to that day. [Saíne objection as last above. Objectiofl sustained, except in so far . as this witness gave any directions, to Ori’a Potter as to making her will ; -upon that subject he may be required to answer. Contestants except.] * * '* Q. What did she'say.to you upon the subject of this present will? [Objected to on the same ground .as former objections. Objection sustained. Contestants except.] * * * Q. State -the conversations that you; had on each .of these-occasions with your mother with reference to- the making of this will, .or the substance of them as you remember, them ? [Objected to ' on the ground that this witness is disqualified under section 829 of the Code. Objection sustained, except there was something said by this witness serving to influence testatrix- in the execution of the will, in which case all such statements, witness may -be required to • testify respecting them, limiting them to what witness said to testatrix. Contestants except.] ”
That the statements of the deceased thus excluded were proper and material evidence on the issue before the surrogate cannot be doubted. I think that a party contesting a will on the ground of • undue influence must be deemed necessarily prejudiced .by the rejec-' tion of material and competent testimony relevant to the issue before' the surrogate within the meaning of section 2545 of tile Code of Civil Procedure. - ' ■ ' . '
Where a surrogate, on the trial of an issue of fact,, receives incompetent. evidence, the case is different from an error .of the: surrogate in rejecting competent testimony. In the former case the evidence improperly received is before the court, and it may appear that, although the surrogate-has erred in admitting it, yet the ■ error did no harm, because -the fact to which such incompetent testimony *273related was clearly proved by other competent evidence. Thus in ■ the case of Loder v. Whelpley et al. (111 N. Y. 239) incompetent evidence was received. ■ The Court of Appeals determined that this error afforded no ground for a reversal of the decree, because the surrogate, in his opinion, which was incorporated in and formed a part of his decision, stated that he had disregarded the incompetent evidence, and also because the decision of the Surrogate’s Court was justified “ by testimony which leaves no doubt of its correctness, and leaving out all the evidence objected to by the contestant, the same result, and. that only, could be reached.” The court in the case cited determined that if a decree of the surrogate was clea/rly right, notwithstanding an error in receiving incompetent testimony, such error is no ground for a reversal.
But the case is different where a surrogate errs in rejecting competent and material testimony. It is impossible to determine what effect such testimony, if received, would have had on the decision of the question of fact before the surrogate. A party offering competent and material testimony is necessarily prejudiced by its exclusion; he is entitled to have such evidence considered by the surrogate; if received it might affect the result; he is injured by its exclusion. The true rule as to the construction that should be given to section 2545 of the Code of Civil Procedure is stated by Andbews, J., in The Matter of the Will of Smith (95 N. Y. 516, 527, 528), as follows : “ Under this section, when the court of review finds that incompetent evidence has been received, or competent evidence rejected, it then becomes its duty to determine whether the error prejudiced the party against whom it was committed. If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot say that, notwithstanding the error, the judgment is right, or if it entertains a reasonable doubt upon the subject, then we conceive a case is presented where the party excepting was necessarily prejudiced within this section.”
In this case the appellants claimed undue influence on the part of the residuary legatees, and sought to show, by them, transactions and conversations had with the deceased immediately prior to the execution of the will in regard to its provisions. This evidence was *274clearly' -competent and material to the issue before the' surrogate. Had it been received he might have reached a different conclusion. The contestants were necessarily prejudiced :by its-exclusion..
I think the decree of the surrogate should be reversed..
Decree affirmed, with costs.