We think that the executor has in this case the right to appeal. The Code of Civil Procedure provides (§§ 1294, 2568) that a “ party aggrieved may appeal.” These words, as applying to executors, have been construed in several instances by the court; but we have been referred to no case wherein the refusal of the surrogate to admit a will or codicil to probate was involved. In the authorities cited in the dissenting opinion, the question related to the construction to be given to a portion of a will which arose after probate and in the course of administration, when the obligation resting upon the executor was purely ministerial and he had no interest in the actual distribution made, and, therefore, was not “aggrieved” by the decision rendered. A distinction, however, is to be observed between directing an executor as to the precise manner in which he shall act and in denying to him the right to act at all; In the latter case, he becomes a “ party aggrieved ” because he is charged with the duty of probating the instrument by virtue of which he receives his office, and thus he is entitled to appeal from a decree which ousts him from the exercise of such functions, and which denies to the beneficiaries whom he represents the right to receive the prop-. erty as set forth in the will or codicil.
This principle was fully recognized in the authority relied upon of Bryant v. Thompson (128 N. Y. 435) wherein the court defined a party aggrieved as one “ having an actual and practical, as distinguished from a mere theoretical interest in the controversy,” and Said, “ The case of People ex rel. Burnham v. Jones et al. (110 N. Y. 509) is not contrary to these views. In that case the commissioners of the land office, representing the State, made a grant of land under water to an individual. Subsequently the determination' of the commissioners * * * was reversed by the Supreme Court on certiorari and the commissioners appealed to this court where a motion to dismiss was denied. The order appealed from in that case in effect nullified the grant made by the State, and the *3commissioners, as public officers representing the State, were in duty bound to defend the grant against the effect of an erroneous decision and so were aggrieved.” And in Bliss v. Fogg (27 N. Y. Supp. 1053 ; S. C., sub nom. Bliss v. Fosdick, 76 Hun, 508) it was held (head note) that “Where judgment is rendered for defendants in an action by executors to compel a transfer to them of certain property, the executors are parties ' aggrieved ’ within Code Civ. Proc. § 1294.”
In considering similar language in Green v. Blackwell (32 N. J. Eq. 768, 772), where the statute there gave an appeal to “all persons aggrieved,” the court said: “ Whoever stands in a cause as the legal representative of interests which may be injuriously affected by the decree made, is, within the meaning of these laws, aggrieved and, therefore, may appeal.” A codicil is a part of the will. It is executed with the same formalities ; and the testamentary disposition sought by it to be made is treated and is the same as though the provisions were actually incorporated in the body of the will itself. The codicil, in fact, is a will, and is to be carried out by the executors named in the will; and, therefore, the same rules apply as would apply to rights of parties acquired under a will.
Upon the merits, we think this is peculiarly a case which should be submitted to a jury for determination. The evidence, as we view it, preponderates in favor of the conclusion that the codicil was duly and properly executed and that the testatrix was of testamentary capacity. What is to be kept in mind in every case where the probate of a testamentary paper is involved is, whether the legal requirements are complied with and whether the testator was of sound mind and disposing memory, and unaffected by undue influence or constraint. As will be seen from the opinion of the learned surrogate, he was “ not satisfied ” that the codicil was validly executed, or that the testatrix intelligently assented-to its execution, or that she was free from the restraint or compulsion of her husband. It is not attempted to show that the codicil was not executed with the statutory formalities; but it is claimed that the evidence discloses inability of the testatrix to intelligently and freely assent to the codicil owing to her ill health and the undue influence of her husband.
*4The testimony of the subscribing witnesses to the codicil — the lawyer who prepared, it and the family physician of the testatrix —• shows that every essential element was present in the manner of its execution. They testified that she stated she wished the codicil to be made giving to her husband the money in the bank, and it was so made and read to her, and she approved it; that though she attempted to rise up in bed and sign her name, the doctor thought it inadvisable, and so she was supported in bed and the attorney held her hand on the pen, and thus the mark was made, to which he added the words “ Eliza Stapleton, her mark; ” that she declared it to be a' codicil to her last will and testament and asked them both to sign as witnesses, which they did in her presence and in the presence of each. other. The physician further testified that the .testatrix had formerly indicated her desire to change her will in this manner and he had attempted to prepare a paper for her, but learned that it was illegal and told her she should get an attorney, which was then done. His testimony is not discredited because this discarded paper was not put in evidence.
Such testimony, showing a "desire to make the codicil in question and a compliance -with the legal requisites, Which is absolutely unchallenged, goes far to showing that the testatrix acted freely and intelligently. And it is supported by the further testimony of the lawyer and the physician, that she was at the time, in the words of the latter, “ of sound and disposing mind and memory and understanding ” ’ and not “ under any restraint or influence or duress.” On this subject of duress, there is not a word- of testimony to show that the husband exerted any undue influence. The uncontroverted testimony, even of the contestants’ own witnesses, is that there had never been family disputes; and the fact that the husband was attentive and well disposed towards his wife and was with her constantly during her illness, is what was to be expected of him, and is no basis for finding that he exerted undue influence.
The real question thus comes to be whether or not the testatrix was. physically able to intelligently supplement her will by this codicil. It is true that- she was, as stated by the learned judge Writing the dissenting opinion, “ upon her death bed,” but so she was ’when she executed the.will itself. Was she on the eighteenth day of March, the date of the codicil, able to make a valid testamentary *5disposition ? Those who were present say that she was; and these include beside the lawyer and the physician, the housekeeper who said “ she was all right in her mind and knew what she was doing and saying; ” adding that after the execution the testatrix requested her to remove papers scattered upon the bed and to give her a drink of water, and thereafter said she wanted to lie down, as she had been propped up in bed. The housekeeper further said that the day before Mrs. Stapleton had given directions as to what preparations to make for dinner..
Another Avitness said she had seen the testatrix the day prior to the making of the codicil and that she had mentioned that she intended to give the money to her husband; and a boarder in the house testified that the day previous, March seventeenth, he had ■ talked with, her and she Avas rational, and he often had seen and spoken with her about that time. Another Avitness said she called on the testatrix on March twenty-third, and shook hands with her and asked her how she felt, and she said she was feeling pretty good but she was very weak; that Mrs. Stapleton then asked about her family, and she thought her of sound mind. Father Farrelly, Avho from March first had constantly attended the testatrix, testified that at times she was flighty, but that about the middle of the month he came to the conclusion that she was going to get better and that on the eighteenth of March he heard her confession. As to this avg have the following questions and answers: “ Q. You had every opportunity on that particular day of seeing her condition, of observing her condition? A. Yes. Q. You can state positively that she spoke intelligently on that day ? A. Oh, yes. Q. Heard her confess intelligently ? A. Yes.” Another priest testified that at times during March his conclusion was her mind was wandering,, but she also during that month spoke to him intelligently. A niece of the testatrix testified that either on the nineteenth or else on the twenty-sixth, she called on her aunt but had not seen her previously for a year, and her aunt did not know her. And another niece testified that she saw her aunt on March tAvelfth, and the latter asked her irrational questions. The contestants also called one of the residuary legatees who testified that he was in the habit of visiting his aunt during her last illness ; but he was not asked Iioav she Avas at such times.
*6It will be seen that the testimony of all' the contestant’s witnesses regarding the irrational condition of the testatrix at the times mentioned by them is not inconsistent with the testimony of the proponent’s witnesses that on the eighteenth of. March, when the codicil was duly executed, she was of sound mind and disposing memory. On the other hand, to refuse probate to the codicil is to impeach the statements of the subscribing witnesses, a physician and lawyer. The testimony of the two nieces that when they called their aunt did not appear rational, is explained by the priests who called often during the month and who testify that sometimes she was “ flighty,” although at other times perfectly intelligent. That she was of sound mind on the eighteenth and able to make a valid disposition of her property as testified by those present at the time, is corroborated by the statement of Father Farrelly that about the middle of the month he thought she was going to get better and that on the nineteenth, the' day following the execution, he took her confession. And it is also corroborated by all the other disinterested witnesses who called about this time and conversed with the testatrix. Furthermore, according to the housekeeper, who was with Mrs. Stapleton constantly, she did not become actually unconscious until two days before her death, which occurred March thirty-first, nearly two weeks after the execution of the codicil.
From this summary of the evidence, we think it is clear that this case, as stated, is one requiring that the question of the testamentary capacity of the decedent should be determined by a jury. • That part of the decree, therefore, from which this appeal is taken, should be reversed, and a new trial ordered before a jury, with costs to the appellant to abide event.
Van Brunt, P. J., and Patterson, J., concurred; Laughlin, J., dissented.