in law or equity. Dated Naples, February, 1884. [Signed] T. M. HOECKER. H. H. HAVILL." At the special term the second ground of defense was sustained, and the complaint dismissed. Plaintiff appeals. T. M. Howell, for appellant. Cogswell, Bentley & Cogswell, for respondent. DWIGHT, J. The action was to foreclose a mortgage of real estate. The answer alleged duress, and that the mortgage was given to compound a felony. The court found the second defense established, and the judgment dismissed the complaint, but without costs, since the parties were in pari delicto. The question principally argued on this appeal is as to the sufficiency of the evidence to support the finding of fact upon which the judgment is based. A careful examination of the evidence in the case satisfies us that the judgment cannot be disturbed on this ground. The burden of proof was undoubtedly on the defendant. She was required to establish her defense by a very clear and satisfactory preponderance of credible evidence. This she has done by the direct evidence on her part which relates to the principal transaction of January, when the mortgage was given, if that evidence was not so inherently improbable or so self-contradictory as to render it unworthy of credit. It was evidently accepted as credible by the court below; and the question of the degree of credit to be accorded to witnesses is one which must, in most cases, be committed to those judges of the fact, before whom the witnesses are produced, and by whom their appearance on the stand, and the manner of giving their testimony, may be observed and considered. But, aside from the direct evidence bearing upon the principal transaction, the evidence, oral and documentary, of subsequent transactions between the parties, bears very strongly, if it is not of itself conclusive, upon the question of the character and intent of the principal transaction. The surrender by the plaintiff of the entire amount of forged paper then producible, and the agreement in writing to deliver up all other paper of the same character which he should afterwards find, was evidence of the character referred to, and was uncontradicted. Objections were made to the admission of this class of evidence; and the exceptions to the rulings of the court by which it was admitted present the only remaining question in the case. The evidence was clearly competent. It was evidence of facts which the court was justified in considering as part of the same transaction as that in which the mortgage was given,—as performances on the part of the plaintiff of that which he undertook to do in consideration of the giving of the mortgage. It was a later transaction from which light might be reflected upon the earlier, from which the purpose and intent of the earlier transaction might in some measure be inferred. It was competent as evidence in the nature of an admission; and any subsequent admission, declarative by act or word of the party, which tends to show the motive, intent, or character of his previous act, which is in question, is always admissible for that purpose. This is the rule even in criminal cases, and even though the subsequent act may constitute a distinct and separate crime. Pierson v. People, 79 N. Y. 424. The record in this case discloses no error which supports any exception taken on the trial, or to the findings of the court. The judgment must be affirmed, with costs. All concur. MAYER . EQUITABLE RESERVE FUND LIFE Ass'n. 1. INSURANCE-ACTION ON LIFE POLICY-INSTRUCTIONS-APPLICATION. cerning his own health, etc. Held, that the qualification, "so far as he knew," applied only to the question requiring the applicant to speak concerning the health, etc., of others, and not to the questions concerning himself; and therefore an instruction referring to the latter questions that "if he [the applicant] does answer, according to the judgment of the jury, fairly and honestly, then he has performed his warranty," is erroneous.1 2. SAME-CHANGE OF BENEFICIARY-ACQUIESCENCE BY COMPANY.. The by-laws of a mutual benefit life insurance association provided that no change of beneficiary by a member should be effectual "unless the certificate thereof shall have been filed, examined, and found correct, and the necessary change made in the records of the association, before the receipt of notice of the death of such member." A certificate of change of beneficiary executed by a member in plaintiff's favor complied with all the requirements of the by-laws, except it did not give . the names of the beneficiary to be superseded. No objection was made to the certificate by the association on account of such omission, and the secretary, in a letter to plaintiff acknowledging receipt of same, spoke of it as "substituting your name as beneficiary." Held, that such declaration was evidence against the association, warranting a verdict that a change of beneficiary had been duly effected; there being no evidence that the acts required of the association to effect the change had not been done. Appeal from circuit court, Ulster county. Appeal by the Equitable Reserve Fund Life Association, defendant, from a judgment in favor of the plaintiff, John M. Mayer, entered upon the verdict of the jury upon the trial at the Ulster county circuit; also from the order denying the motion made by the defendant upon the minutes to set aside the verdict, and grant a new trial. The action was brought by the plaintiff to recover as assignee upon a certificate of membership issued by the defendant to Charles Stephan. This certificate was a contract of insurance upon the life of Stephan for $5,000, subject to certain terms and conditions. The defendant answered, and alleged a breach of the warranties upon which the certificate was issued; fraud, collusion, and misrepresentation in its procurement; no title in the plaintiff. The certificate of membership, constituting the contract for insurance, provided that “in consideration of the representations, warranties, and agreements made to and with this association in the application for this certificate of membership," and the payment, etc., the defendant receives Charles Stephan "into its membership," and agrees "that, within ninety days after the receipt of due notice and satisfactory proofs of the death of the above-named member during the continuance of this certificate of membership, there shall be payable to the heirs or legal representatives of said member the sum of $5,000 from the death fund," etc. The certificate recites that it is "subject to all the provisions contained in the constitution and by-laws of the association," and also that it is issued and accepted "subject to the express conditions that if any of the statements, answers, declarations, or representations made in or accompanying the application for this certificate, which application is hereby referred to and made a part hereof, are in any respect untrue, then, in each and every such case, this certificate shall cease and determine, and be null and void." The application was signed by Charles Stephan. It contained numerous questions, and recited that the applicant should answer "fully and truly, with representations upon which, as part consideration, the certificate, if issued, will be based." The application contained this declaration: "It is hereby declared and warranted that the foregoing answers and statements are full, complete, and true, and it is agreed that this declaration and warranty shall form the basis and shall be a part of the contract between the undersigned and the Equitable Reserve Fund Life Association, and are offered to said association as a consideration of the con * * * 1See Hoffman v. Legion of Honor, 35 Fed. Rep. 252, and note. As to the proper method of effecting an assignment of a life insurance policy, and a change of beneficiaries named therein, see Lamont v. Legion of Honor, 31 Fed. Rep. 177, and note; Wendt v. Legion of Honor, (Iowa,) 34 N. W. Rep. 470; Grand Lodge v. Child, (Mich.) 38 N. W. Rep. 1; Association v. Montgomery, Id. 588; Hurlbut v. Hurlbut, 1 N. Y. Supp. 854. tract applied for," etc. Accompanying the appplication is the medical examiner's report containing a list of printed questions to which the applicant made answers, and signed a declaration similar to the above. The defendant is an association organized under chapter 175, Laws 1883, for the purpose of transacting the business of life insurance upon the "assessment plan." Argued before LEARNED, P. J., and LANDON, J. Samuel Fleischman, for appellant. E. S. Wood, for respondent. LANDON, J. The application for the certificate was made by Charles Stephan, October 10, 1883, and he died December 27, 1883. Upon the trial much testimony was given on the part of the defendant tending to show that several of the answers made by the insured in his application and upon his medical examination were not "fully and truly" answered. According to the terms of the contract, these answers were warranties; and, if not fully and truly made, the contract was, by its own terms, void. Such was the agreement of the parties to it,-an agreement which it is hardly necessary to say it was entirely competent for the parties to make, and which the court cannot unmake, but must accept as made, and enforce. Foot v. Insurance Co., 61 N. Y. 571; Cushman v. Insurance Co., 63 N. Y. 404; Baker v. Insurance Co., 64 N. Y. 648; Edington v. Insurance Co., 77 N. Y. 564, 100 N. Y. 536, 3 N. E. Rep. 315; Bryce v. Insurance Co., 55 N. Y. 240; Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. Rep. 654. In the application made by the insured, there was one question, the eighth, which required an answer respecting the age, health, etc., of the father, mother, brothers and sisters, and grandparents of the insured. The question was: "State, so far as you know, what was the age at death, cause of death, duration of final illness, and state of previous health, of each of the following persons, if deceased? What is the age and present state of health of each of them if now living?” Following this question were these, among others: Ninth. Are you now in good health, and is your health usually good?" The answer was, "Yes." Tenth. “Have you ever had any serious illness, local disease, or personal injury. If yes, state nature, date, and duration and severity of attack." The answer was, “"No." Fourteenth. “Name and residence of your usual medical attendant?" The answer was, "None." The testimony on the part of the defense tended to show that the answers given were false. The court charged the jury that the qualification in the eighth question, "so far as you know," was implied and understood in each of the other questions. The court said, referring to the latter questions and the answers to them: "If he [the insured] does answer, according to the judgment of the jury, fairly and honestly, then he has performed his warranty." We think the learned judge fell into an error. The qualifying words in the eighth question are manifestly inserted because the insured is called upon to speak with respect to the health, etc., of others. He was supposed to have some, but possibly he had only small, knowledge of the matters inquired of. Respecting himself, and his own health and medical attendant, he was presumed to know. If the charge of the court in this respect is sustained, then the insured, whose warranty required him to answer "fully and truly," might with entire safety have answered falsely and partly, if the jury should think they could excuse him upon the ground that he answered "fairly and honestly." It is not difficult to see that such a definition of the terms of the contract opened the way for the jury to hold the defendant liable, although every answer of the insured might have been false, and known by him to be so. It substituted for the fact itself an inquiry into the dead man's belief respecting the fact. It is enough to say that the defendant had entered into no contract requiring it to abide such a hazard. The defendant urges that the plaintiff has no title to the certificate or to the claim against the defendant, if any valid claim exists. The eighteenth secV.2N.Y.S.No.2-6 tion of the act under which the defendant was organized (chapter 175, Laws 1883) gives a member the right, with the consent of the association, to make a change in his beneficiary. The act gives the association power to make by-laws for the conduct of its affairs. Section 4. The defendant's by-laws provided that the member desiring to change his beneficiary should execute a certificate before a notary public or other proper officer, "in such form as the executive committee shall prescribe or appoint," stating his name in full, number of certificate, name and place of residence of the beneficiary whom he desires to substitute, name or names of those whom he desires to supersede, and file it with the secretary of the association, who shall, upon its receipt, immediately examine it, and if in due form, duly executed and acknowledged, he shall make the proper entries to show that the change has been made. "No change of beneficiary shall be effectual unless the certificate thereof shall have been filed, examined, and found correct, and the necessary change made in the records of the association, before the receipt of notice of the death of such member." Here Charles Stephan, the insured, executed and acknowledged an assignment before a notary public on the 25th day of October, 1883, and delivered it to the plaintiff. The assignment complied with all the specified requirements of the by-laws, except it did not give the names of the beneficiaries to be superseded. It was delivered to the secretary of the defendant on or previous to November 19, 1883. On that day the secretary wrote to the plaintiff that "the association has to inform you that it duly received a certificate made by Charles Stephan substituting your name as the beneficiary of his certificate of membership in this association. Such certificate is numbered 244." No objection was taken to the form, contents, or omissions of the assignment. The defendant spoke of it as "substituting your name as beneficiary;" and we think that declaration is evidence against the defendant sufficient to support a verdict that the assignment had been duly examined, filed, approved, and the proper entry made, and the change in beneficiary effected. There is no evidence that these acts were not done by the association. Our examination leads to the conclusion that the law does not defeat the plaintiff's right of recovery upon the ground of defects in his paper title, but makes it dependent upon the issues of fact. As there must be a new trial for the reasons first assigned, we do not deem it needful to examine the other grounds of error alleged, since, upon a new trial, they may not arise. The judgment should be reversed; a new trial granted; costs to abide the event. LEARNED, P. J., concurs. INGALLS, J., not sitting. In re HESDRA'S WILL. (Supreme Court, General Term, Second Department. June 25, 1888.) 1. WILLS-PROBATE-PROOF OF EXECUTION. Upon proceedings to probate a will, both witnesses being dead, there was evidence that one witness, in whose handwriting the proposed will appeared to be, and whose son was named executor therein, without bond, had, during his lifetime, repeatedly denied its existence, and had at one time so testified. No motive appeared why the witness should either forge the will or deny its execution if genuine; and, tested by decedent's surroundings, it was reasonable, and such a will as would be expected of him. The signatures of testator and the witnesses were clearly proved, and the latter were neighbors and friends of the former, likely to be witnesses to his will. Held, that the will should be admitted to probate without any issue devisavit vel non. PRATT, J., dissenting. 2. SAME-PROBATE-EVIDENCE-DECLARATIONS OF DECEDENT. In such case the admission in evidence of declarations of a deceased witness that decedent had made a will, in reply to his declarations to the contrary, even if erroneous, is not sufficient to reverse the decree for probate. Appeal from surrogate's court, Rockland county. This case is an appeal from the decree of the surrogate's court of Rockland county admitting to probate a paper purporting to be the will of Edward D. Hesdra, proposed by Millard F. Onderdonk, who was named as executor therein. The will was contested by Amanda Tordoff, who claimed to be the next of kin, by one Estelle Hesdra, an alleged heir, and by the attorney general for the state, claiming that the deceased had died without heirs. The contestant Tordoff appealed. Argued before BARNARD, P. J., and PRATT and DYKMAN, JJ. B. F. Tracy, for appellant. D. G. Griffin, for the attorney general. Garrett Z. Snider, for proponent. BARNARD, P. J. The evidence is voluminous, but the issue finally depends upon the genuineness of the signature of the testator and the witness Frothingham. Edward D. Hesdra, a resident of Rockland county, died in July, 1884. The proposed will was made September 11, 1883. The will was drawn by one John V. Onderdonk, and he is one of the witnesses. The will so entirely accords with the surroundings of the testator that no reasonable hypothesis can be entertained that the will was the invention of John V. Onderdonk; and this view of the case is met by proof that the will was drawn in accordance with the directions of testator, but that it was never signed by him. Proof is given tending to show that John V. Onderdonk so stated the fact to be. This proof is so entirely unnatural that no great weight can be placed upon it. Assuming a man bad enough to forge a will, it is quite incredible that he would have acknowledged the fact. The evidence of his daughter and her husband is also subject to criticism, because it appears that they were not friendly with John V. Onderdonk, and had a suit pending against him, in which serious charges of dishonesty were made both against John V. Onderdonk and his son, the proponent of the will, and the executor named therein. There is something to be accounted for which is more troublesome than that which bears upon the alleged forgery of the will. John V. Onderdonk was an old man, with little business. He had been a builder in his early years. He had been and was friendly with testator until his death. He survived the testator over two years. No steps were taken to prove the will, although he knew that he was dead, and he repeatedly said there was no will; and on one examination upon a contest for administration, in July, 1885, John V. Onderdonk testified that there was no will, or so testified that no other inference was possible if he had been a truthful witness. What explanation is there for this? It must be stated in the outset that John V. Onderdonk takes nothing under the will. His son is executor, and it has given him 10 years to close up the estate, and provided that he should give no bonds. These facts were not sufficient inducements to have John V. Onderdonk act towards proving the will in his life-time, and he lived until February, 1887. Notwithstanding all arguments based upon the evidence given on the trial, the decision that the will is genuine seemed to be well supported. The will must have been the work of the testator so far as respects the terms. No one, much less an inexperienced man, could have invented a will to fit so entirely the family and creed of testator. The signature of Frothingham is proven by members of his family. He was a small dealer in painters' supplies, who had his store near Onderdonk's, and with whom Onderdonk was friendly. Frothingham is dead. This witness is one who would be likely to be called as such by Onderdonk and testator. There is no motive for the forgery by Onderdonk. If it was done to injure any one, the injury does not appear. A Mrs. Tordoff sought to be administratrix upon the basis of intestacy. If the design was to injure her, she and her family got a large share in the estate under the will. Finally, the will and the signature both of testator and Frothingham are produced, and from an examination of them it is evident that the signatures are genuine as to both of these parties. They |