The opinion
Smith, J. (dissenting in part):
I concur in the opinion of Mr. Justice Page in the holding that the executors are entitled to a new trial on the ground that the verdict is against the weight of evidence. In the conclusion of the court, however, limiting the right of retrial to the issue of testamentary capacity, in my judgment, such limitation is unauthorized. Two issues were presented, first, the issue of undue influence, and, second, the issue of testamentary capacity. The court excluded from the consideration of the jury the question of undue influence. The contestants could not appeal from that ruling because they are not aggrieved by the judgment. The will was declared invalid. Nor could the contestants sustain this judgment upon any exception to this ruling unless the evidence so far preponderated in favor of the contestants upon the question of undue influence as to authorize the court to direct a verdict. The contestants, therefore, in my judgment have, upon a new trial, the right to litigate the question of undue influence, either upon the same or upon further evidence. (City of Buffalo v. D., L. & W. R. R. Co., 176 N. Y. 308, 311 .) I, therefore, dissent from such limitation.
Furthermore, I do not agree that the destruction of the letters by the clerk of the executors was not competent evidence. Its significance was perhaps magnified on the trial, but the relations between the decedent and his relatives were vital and material, both upon the question of undue influence and upon the question of the testator’s competency. If the question of competency depends, as it clearly does, in part upon the appreciation of the moral claims upon his bounty of. those who were in part excluded by the will, I cannot follow the reasoning which would hold that the destruction of any evidence which might bear upon that question was not a subject for the consideration of the jury, as an implied admission that if such evidence had not been destroyed, it might *168 admit of inferences adverse to the claims of the executors. To hold otherwise would permit an executor, who presumptively has an interest in sustaining a will, to destroy evidence which might be not only material, but perhaps conclusive of the issue. The effect of such an admission would be, of course, for the jury, subject to such explanation as might be made by the executors of the reason which prompted the burning of these letters. This clerk of the executors was an experienced clerk with large experience in the matter of estates. The burning of these letters was not inadvertent, but was deliberate. This will was executed shortly before the testator’s death. It differed materially in the disposition of the property from that provided for by a former will made only about a year previous. The residuum was given to legatees for whom the testator had many times expressed positive aversion. While his change of purpose during the last year of his life would bear strongly upon the question of undue influence, it was also a proper subject for the consideration of the jury as to whether it was not indicative of a loss of that appreciation of the moral claims to his bounty which he had recognized in his prior will.
Merrell, J., concurs.
Decree and order reversed, with costs to all parties who filed briefs in this court, payable out of the estate, and a retrial ordered upon the issue of testamentary capacity.