Christian D. Bernsee was under our decisions an incompetent witness to testify to any conversation or transaction in his presence at the time of the execution and publication of the will. He was one of the chief beneficiaries *Page 392 thereunder, and was directly interested in establishing due execution. What occurred at that time was a transaction between the testatrix and the witness, within the meaning of sec. 829 of the Code, although he took no actual part in the conversation and it was wholly between the testatrix and the attesting witnesses. If active participation in the conversation was necessary to exclude an interested witness, and he should as an observer be permitted to testify to transactions in form between the deceased and third persons, although such transactions were in his interest, it would furnish an easy and convenient method in every case of evading the statute. The decisions have enforced the spirit of the statute by excluding such evidence, and have treated transactions between the deceased and third persons in the presence of interested parties as if the witness actually participated therein. (Holcomb v. Holcomb, 95 N.Y. 316;Matter of Eysaman, 113 id. 62; Matter of Dunham, 121 id. 575.)
The main controversy on the trial related to the question whether the will had been signed by the testatrix when it was attested by the subscribing witnesses. It is essential to the due publication of a will either that the witnesses should see the testator sign the will, or that such signature should have been affixed at some prior time and be open to their inspection. (Matter of Mackay, 110 N.Y. 611.) In the will in question the names of two persons are signed as attesting witnesses at the end of a full and complete attestation clause, reciting all the facts necessary to due publication under the statute. Both were sworn on the probate. One testified to a compliance in full with all the requirements to a due execution; that the testatrix signed the will in the presence of both witnesses, declared it to be her will, and that witnesses signed it in her presence and at her request. The other subscribing witness did not recollect that the testatrix signed the will, or that he saw her signature to the instrument at the time he subscribed it as a witness. It perhaps may be said that in the end the witness denied without qualification that the will was signed by the testatrix when he affixed his name, or that her signature *Page 393 was upon the paper witnessed by him. This made at most a conflict of evidence upon an essential fact, and it was competent for the court to find that there had been a due publication, although but one of the witnesses testified to the essential facts, and they were denied by the other. (In re Cottrell, 95 N.Y. 329, and cases cited.)
The proponent sought to introduce the testimony of Christian D. Bernsee in aid of the testimony of the subscribing witness, who had testified that the will was signed by the testatrix in the presence of the attesting witnesses. But, upon objection by the counsel for the contestants, this evidence was excluded. Upon the main controversy, therefore, as to the publication of the will, the contestants cannot complain because of his being sworn in the case.
The contestants also opposed the probate on the ground of mental incompetency of the testatrix and of undue influence. The will unexplained, which practically disinherits two daughters in favor of two sons, seems unnatural, and this was doubtless a circumstance to be considered on the question of undue influence alleged to have been exerted by the sons. But circumstances are shown, not necessary now to detail, which the surrogate had a right to find influenced the testatrix in making her will, and to justify the conclusion that the will was the deliberate and intelligent expression of the will of a competent testatrix, uninfluenced by any improper interference on the part of the two beneficiaries. It is claimed that the testimony of Christian D. Bernsee bore upon the issue of undue influence. There is very little, if any, evidence which would have justified a finding that the will was procured by undue influence. Dr. Bellows, one of the subscribing witnesses, who failed to recollect the facts sworn to by the other subscribing witness as to the signing of the will by the testatrix, testified, among other things, in substance, that the son, Christian D. Bernsee, came to his office with his mother to get him to sign the will as witness; that the son, during the interview, had the will in his hands and conducted the ceremony of publication, and that the son asked the witness to *Page 394 sign the paper as a witness, and when it had been signed by the witness, took it away with him. The testimony of Christian D. Bernsee contradicts that of Dr. Bellows as to some of the details of the transaction. The main contradiction is that his mother, and not himself, asked the witness to sign. The only bearing of the evidence of Dr. Bellows on the issue of undue influence consisted in his statements that the testatrix seemed nervous and excited, and his evidence that the son Christian took an active part in the ceremony of publication. But it clearly appeared from the other testimony, as well as by the testimony of Christian himself, that he accompanied his mother on this occasion for the purpose of having her will executed, and that he produced and read formal instructions for the execution of the will prepared by the lawyer who drew it. His action and participation was fully shown, and it is impossible to suppose that the matters of variance between his testimony and that of Dr. Bellows could have had any influence in the decision of the case. It would be contrary to the general rule to reverse a judgment for a technical error which did not affect the result. The witness was not permitted to testify as to the main matter for which he was called, and the other matters as to which he testified did not prejudice the contestants.
The judgment should be affirmed.
All concur.
Judgment affirmed. *Page 395