On the 10th day of September, 1883, John Baxter, father of Benjamin Baxter and Mathias Baxter, parties to this action, executed a paper purporting to be his last will and testament, wherein he named the defendants, Mathias Baxter and Benjamin Baxter, as executors. After the death of the testator, Mathias and Benjamin Bakter filed their petition with the surrogate of the proper county for the probate of the will of John Baxter, deceased; and objections to the probate of the same were filed on the ground, among other things, that the testator, at the time of making his will, was not competent to make a valid will. On the trial of that ques*835tian the surrogate held and decided that the testator was of unsound mind at the time of the execution of such will, and refused to admit the same to probate. On the same day of the execution of this will by the testator, he signed, executed, and acknowledged the deed sought to be set aside in this action, and on the next day sent for Mathias, the grantee, to come to his house, so that he could deliver the deed to him; and, about two weeks thereafter, testator said Mathias had been up, and he had delivered the deed to him. The exact time of the delivery of the deed does not appear, but it was not delivered on the day the will was executed. The evidence discloses an executory paroi contract between the testator and the defendant Mathias, whereby it was agreed that if he would remain with his father, and work for him, after he attained his majority, he should receive for his services a farm; and the evidence discloses, and the jury find, that, in pursuance of that contract, he did continue, for many years, to work for his father without compensation other than was embraced in such paroi agreement, which the jury found the defendant had fully performed. The testimony also shows that the testator and grantor in the deed, in a conversation two weeks after the execution of the same, referred to the delivery of the deed as an act due to the defendant Mathias, which he ought to have performed before, presumably referring to the services performed by the defendant under the paroi contract. On the trial the plaintiffs put in evidence the decree of the surrogate refusing to admit the will of John Baxter to probate, under the objection of the defendant Mathias, the court holding that it was competent evidence upon the question of the mental capacity of the defendant’s grantor at the time of the execution of the deed to defendant. On the conclusion of the evidence, the learned trial judge held and decided as follows:
“The Court: The surrogate of the county of Otsego, in a proceeding in which all the parties in this case were parties, and in which the question of the mental competency of John Baxter on the 10th day of September, 1883, was litigated, having adjudicated that he was then of unsound mind, and mentally incompetent to make the instrument which was then propounded as his last will and testament, that adjudication is competent in this court, and is conclusive on the mental competency of John Baxter upon that day. If he was on that day mentally incompetent to make any testamentary disposition of his real estate, as matter of law, it follows that he was mentally incompetent to convey his real estate, or to make any disposition of it, by deed. I shall hold that, by reason of that adjudication, this conveyance, which was executed upon the same day, was void.”
This defendant duly excepted to the ruling and determination of the judge, and insisted that the whole case should be submitted upon the questions of fact to the jury, or determined by the court as questions of fact, upon all the evidence to which the court responded :
“The Court: I decline to hold that there is any question of fact of that kind in thi; case to submit to the jury, and I decline to submit the question to them; and, as a court, I find John Baxter, at the time of the execution of the instrument in question in this case, was mentally incompetent. I find it as a question of fact in this case, and find it from the adjudication, without taking into consideration the testimony in the case.’.’
*836To this conclusion of the learned trial judge this defendant excepted, and from the decree setting aside the deed he appeals.
One of the principal questions before the trial court, and litigated in this action, on the trial, was whether or not, at the time of the execution and delivery of this deed, the grantor was mentally incompetent to execute a valid conveyance of real estate. Upon this question the learned trial court took the decree of the surrogate as conclusive evidence against the defendant of the invalidity of the deed. While the decree of the surrogate, under the circumstances of this case, was, we think, competent evidence against the defendant, and as such was prima facie evidence of the matters adjudged in it, we do not regard it as absolutely conclusive as an estoppel against him. If the will had been admitted to probate, the decree of the surrogate would have been presumptive evidence only of all matters determined by the surrogate. Section 2627 of the Code of Civil Procedure, upon this subject, provides as follows:
“A decree admitting to probate a will of real property * * * establishes presumptively only all matters determined by the surrogate * * * as against a party who was duly cited, or a person claiming through or under him, or upon the trial of an action, or hearing of a special proceeding in which a controversy arises concerning such will, or when the decree is produced in evidence in favor of or against a person. * * *”
In construing this section, the court of appeals, in Re Merriam, 136 N. Y. 61, 32 N. E. 621, uses this language:
“The record is presumptively evidence only of its due execution, and the mental competency and freedom from restraint of the testator, and not of the validity of the devises contained in it, in any tribunal where .the title to the real property of the testator may be in issue;” citing section 2627 of the Code, supra.
Under this provision of the statute, the heirs would not have been concluded absolutely by the decree of the surrogate, if this real estate had been devised to the defendant in the will, and the same had been admitted to probate. The heir not being estopped, under such circumstances, by the decree of the surrogate, it would seem to follow that the grantee under the deed, the validity of which was not directly in issue before the surrogate, is not estopped by a decree that the grantor, on the day of the execution of the deed, was not competent to devise real estate. The doctrine is laid down in Abbot’s Trial Evidence, (page 111,) and supported by the authorities there cited, that:
“Where the probate of a will would not be conclusive in favor of the will, a decree of the probate court rejecting the will is not conclusive against it.”
This deduction would seem to be logical, when applied to the will itself, and to apply with greater force when applied to a deed executed contemporaneously with the will. It is quite true that the trial court, sitting as a court of equity, might have regarded the decree of the surrogate sufficient evidence, as matter of fact, and considered that prima facie evidence, as matter of fact, sufficient to overcome all the other evidence in the case. But his refusal to consider the other evidence, and holding that the decree was, as matter of law,, conclusive, was, we think, error.
*837It was also a question of fact, under all the evidence in this case, whether the grantor was in the same mental condition at the time of the delivery of the deed as he was found to be at the date thereof. The deed took effect from the time of its delivery, which, by the undisputed evidence, was some days after its execution, and there was some evidence that at the time of the delivery the grantor had some appreciation of the relation existing between him and the defendant, and of the obligation he owed to him; and while, as we have seen, none of these matters would, as matter of law, necessarily overcome the prima facie case ipade by the introduction of the decree, we think it raised a question of fact, which the court should have considered. I am therefore of the opinion that the learned judge erred, and that the judgment should, for that reason, be reversed. Judgment reversed, and a new trial granted; costs to abide the event.
PUTNAM, J., concurs. HERRICK, J., dissenting.