Matter of Hesdra, 119 N. Y., 615.

by the death of the witness, to be deprived of obtaining the advantage of such evidence."

The competency of this evidence is supported by an able note to the case from the learned reporter of the court, who was peculiarly qualified to discuss questions relating to rules of evidence.

Assuming, therefore, for the purpose of this decision that all the evidence produced by the appellant was competent, and that the declarations of a subscribing witness are competent to impeach its execution, a question which we do not decide, as the decision being in favor of the appellant it becomes unnecessary to do so, we proceed with the examination of the case. The declarations of the subscribing witness Onderdonk, tending to show the forgery of the various signatures thereto, affected the credibility of the witness alone, and had no other effect than to impair the force of his signature as evidence of the performance of the conditions stated in the attesting clause, and still left the question of fact, whether the will was properly executed, to be determined by the trial court upon all the evidence of the case. Assuming as we must, under the findings of the court, that all of the signatures to the will were genuine, it remained for the trial court to determine whether the contradictory declarations made by one of the witnesses thereto, subsequent to its execution, were of such a character as required the surrogate to refuse probate to the will. Such declarations could have no greater effect than the positive evidence of the witness upon the stand to the same effect, and yet, even under such circumstances, wills have frequently been admitted to probate upon corroborating evidence derived from circumstances. (Matter of Cottrell, supra, and cases there cited.)

The code expressly provides that the proof of a will may be established when a subscribing witness has forgotten the occurrence of its execution, or testifies against it, upon proof of the handwriting of the testator and the subscribing witnesses, and of such other circumstances as would be sufficient to prove the will upon the trial of an action. (2620.) This section received a practical construction in Brown . Clark (77 N. Y.), 369; Matter of Pepoon (91 id., 255), and Matter of Cottrell

Matter of Hesdra, 119 N. Y., 615.

(95 id., 329), and was held to mean, in accordance with prior decisions cited, that the proof of circumstances bearing upon the question of the authenticity of the will in connection with a regular attestation clause, duly executed, were, if sufficient to satisfy the court of its genuineness, all that was required to sustain the probate of a will. In the Cottrell Case the probate was sustained where both of the subscribing witnesses denied the genuineness of their signatures to the attestation clause, as well as the performance of conditions required by the statute. [The learned Chief Judge here reviewed the condition, situation and relation of the parties, the disposition of property made by the will, and the other circumstances bearing upon the probabilities of the case, saying also]:

*

*

*

By the consent of the parties upon the argument, the court were furnished with the original will and the exhibits of handwriting used upon the trial of the case. The will had the appearance of a genuine instrument. that the court were satisfied that there was sufficient corroborative evidence to establish the authenticity of the will, the learned Chief Judge continued thus]:

[After saying

It is claimed by the contestant that the surrogate erred in permitting the proponents to show confirmatory declarations by John V. Onderdonk, made prior to the death of Hesdra, to support the authenticity of the will. It is undoubtedly the general rule that when a witness has been proved to have made contradictory statements, his evidence cannot be supported by proving that at other times he had made statements in harmony with his evidence. There are, however, well settled exceptions to the rule, and we think this case comes within them. (Robb v. Hackley, 23 Wend., 50.)

The head note to that case reads that "where the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So in contradiction of evidence tending to show that the account of the transaction given by the witness is a fabrication of late date, it may be shown that the same account was given by him before its ultimate operation

Plyer v. German American Ins. Co., 121 N. Y., 689.

and effect arising from a change of circumstances could have been foreseen." This case has been frequently cited in the text writers and followed with approval by the courts of this state. (Greenl. on Ev., § 469; Whart. on Ev., § 570; Dudley v. Bolles, 24 Wend., 471; Gilbert v. Sage, 57 N. Y., 639; Hotchkiss v. Germania Fire Ins. Co., 5 Hun., 90.)

In Gilbert v. Sage it is said that "as the aim of the crossexamination was to establish that so much of the conversation as was not detailed to defendant's counsel was an after thought and subsequent invention of the witness, it was proper to show in answer that the witness had previously told the same story. In Hotchkiss v. Germania Fire Insurance Co. it was said by MULLEN, J., that "statements made by a witness corroborating his evidence on the trial, made soon after the transaction to which it relates, or when he was not under the influence of any motive to relate the transaction untruthfully, are competent where it is shown that he had given a different relation of the occurrence, or that he had testified under the influence of a motive calculated to induce him to testify falsely."

In Herrick v. Smith (13 Hun, 446), the same doctrine was laid down, and evidence to show corroborative statements made by the witness at a time when the alleged motive to testify falsely did not exist were allowed.

The case of Robb v. Hackley was also approved by Judge MILLER in the case of Railway Passenger Assurance Company v. Warner (62 N. Y., 651). And see also Wray v. Fedderke (11 J. & S., 335).

The contestant's evidence tended to show that Onderdonk declared, after Hesdra's death, that he intended to fabricate a will for Hesdra. We think it was competent within the authorities. to rebut this evidence by proof of his declarations during Hesdra's lifetime, that Hesdra had made a will.

All the judges concurred GRAY, J., in result.
Judgment affirmed.

NOTE.-In Plyer v. German American Ins. Co.. 121 N. Y., 689, it was held that statements of a witness (not a party) inconsistent with his testimony, and proved for the purpose of discrediting his testimony, have no effect as evidence of the facts mentioned in such statements.

Notes of Recent Cases on Showing Previous Statements, etc.

After a fire, the representative of an insurance company took the statements of men who were present at the fire, and had them reduced to writing and signed; and by these statements it appeared that there was not a watchman kept. The company then caused their testimony to be taken de bene esse, whereupon they testified that there was a watchman and he was on the premises; and this evidence was given on the trial. To discredit the witnesses defendant proved their first statements in writing, but gave no other evidence of the neglect to provide a watchman. -Held, that the contradictory statements thus proved did not avail as evidence to go to the jury that there was no watchman.

NOTES OF RECENT CASES ON SHOWING PREVIOUS STATEMENTS OR OTHER FACTS INCONSISTENT WITH PRESENT TESTIMONY.

Arkansas: Little Rock, etc., R. Co. v. Voss, 1892; 18 Southwest. Rep., 172 (where in an action for personal injuries defendant's witness on crossexamination testified that he did not make a certain statement to a third person on the morning of the accident, it is not error to allow plaintiff to contradict him by showing that he did make such statement, though the statement was not a part of the res gestae). Florida: Wood v. State, 1893; 12 Southern Rep., 539 (it is not error to refuse to permit a party, calling a witness to prove the contradictory statements of another witness, to lead such witness by reciting in the question the statement which he desires to prove). Illinois: Consolidated Ice Machine Co., v. Keifer, 134 Ill., 481; s. c. 25 Northeast. Rep., 799 (a witness may be impeached by showing that he testified differently in another proceeding, where a proper foundation has been laid therefor). Indiana: Huber v. State, 126 Ind., 185; s. c. 26 Northeast. Rep., 904 (where a witness in a prosecution for rape testified as to the cheerful manner with which the prosecutrix and accused went to the place where the offense was committed, the witness cannot be impeached by showing that she made statements derogatory to the character of the accused since such statements if made would not tend to contradict her testimony). Iowa: Hibbard v. Zenor, 82 Iowa, 505; s. c. 49 Northwest. Rep., 63 (where a witness' attention has been called to his own testimony on a former trial, the transcript of the shorthand notes of such testimony, which have been duly filed, are admissible in evidence to impeach him). Massachusetts: Commonwealth v. Harrington, 152 Mass., 488; s. c. 25 Northeast. Rep., 835 (where in a prosecution for larceny the defendant as a witness in his own bebalf endeavored to explain the various suspicious circumstances attending his actions, it was held not error to allow the commonwealth to show that shortly after the commission of the crime, defendant testified in his own behalf in the district court and gave no such explanation as he had given on the trial). Minnesota: Bennet v. Syndicate Ins. Co., 43 Minn., 45; s. c. 44 Northwest Rep., 794 (where a proper foundation has been laid, a witness' testimony on a

Note of Recent Cases on Showing Previous Statements, etc.

former trial is admissible in evidence to impeach him). Missouri: Spohm v. Mo. Pac. Ry. Co., 101 Mo., 417; s. c. 14 Southwest. Rep., 880 (a witness contradictory statements may be proved where a sufficient foundation has been laid); s. p. Hamilton v. Rich Hill Coal Min. Co., 108 Mo., 364; s. c. 18 Southwest. Rep., 977. New York: Morris v. Atlantic Ave. R. R. Co., 116 N. Y.. 552; s. c. 22 Northeast. Rep., 1097 (although a witness' testimony in a previous proceeding may, where the statements contained therein are inconsistent with his present testimony, and a proper foundation has been laid therefor, be introduced in evidence for the purpose of affecting his credibility, yet where a witness on cross-examination admits that he made a statement referred to, it is error to permit another witness to contradict him in that respect by showing that he did not make the statement; the evidence being collateral matter brought out on cross-examination the party is concluded by the witness' answer). Pennsylvania: Wilson v. Wilson, 137 Pa. St., 269; 20 Atlantic Rep., 644 (it is error to exclude evidence of a witness' contradictory statement, where a proper foundation has been laid). South Carolina: Sherard v. Richmond, etc. R. Co., 1892; 14 Southeast. Rep., 952 (a witness' former contradictory statements are admissible to impeach him). Texas: Cross v. McKinney, 81 Tex. 332; s. c. 16 Southwest. Rep., 1023 (a witness' written statement contradicting his testimony is admissible in evidence to impeach him where his attention has been first called to it). United States: Chicago, etc. R. Co. v. Artery, 137 U. S., 507; s. c. 11 Supm. Ct., 129 (a witness' contradictory statements to impeach him are not required to be proved by the person to whom they were made; and where they have been reduced to writing and signed by the witness sought to be impeached, the writing may be introduced in evidence where a proper foundation has been laid therefor). Delaware, etc. R. Co. v. Converse, 139 U. S., 469; s. c. 11 Supm. Ct., 569 (a witness may be impeached by proving that he made .statements out of court inconsistent with his testimony). Wisconsin : Waterman v. Chicago, etc., R. Co. 82 Wis., 613; s. c. 52 Northwest. Rep., 247 (where a witness denied that he gave contradictory testimony on a former trial, the stenographer who took down the witness' testimony on the former trial may be called to show what the witness testified).

Alabama: Holmes v. State, 88 Ala., 26; s. c. 7 Southern Rep., 193 (where a witness testified on direct-examination that he never heard anything against defendant, he may be asked on cross-examination if he had not heard that the defendant "wore stripes" while working on the streets). California: People v. Ah Lee Doon, 97 Cal., 171 ; s. c. 31 Pacific Rep., 933 (it is proper upon cross-examination of a witness called to prove defendant's good disposition, to ask him if he had not heard of defendant's prior conviction for murder, and of his having drawn a pistol on different persons). People v. Samonset, 97 Cal., 448; s. c. 32 Pacific Rep., 520 (a witness' affidavit on a previous occasion, which tends to contradict his evidence in chief may be read on cross-examination). Colorado: Cravans v. Bennett, 17 Colo., 419; s. c. 30 Pacific Rep., 61 (a party who testifies in his own behalf is subject to cross-examination as to previous statements con