Opinion
December 27, 1939.
Present — Sears, P.J., Crosby, Lewis, Cunningham and Dowling, JJ.
Judgment affirmed, without costs of this appeal to either party. Memorandum: Britting, the grantor who conveyed the real property to Katherine S. Eiss, wife of Franklin J. Eiss, certainly knew to whom he intended to convey the property. He knew Katherine Schoenthal Eiss as the wife of Franklin J. Eiss. He did not know that there was another Mrs. Eiss in existence. It is clear that he intended to convey the land to Katherine Schoenthal Eiss. Her acceptance of the deed is shown by the facts that in her last will and testament she devised real property; that Franklin J. Eiss in his petition for a probate of the will declared that she died seized of real property and that in the report of the appraiser appointed by the surrogate it was disclosed that the only real property of which she died seized was the property conveyed to her by the Brittings. The ruling of the court excluding testimony as to conversations with Katherine S. Eiss and Franklin J. Eiss, both deceased, relating to the real property, was technically incorrect. We believe, however, that such testimony would not have changed the force and effect of the evidence referred to herein and that the error in refusing to admit it was not harmful to the appellants. All concur, except Crosby, J., who dissents and votes for reversal on the law and for granting a new trial on the ground that the exclusion of the evidence of Alfred C. Eiss was reversible error. (The judgment is for plaintiffs in an action in ejectment to recover possession of realty.)