
    William S. O'Brien et al., Ex'rs, Resp'ts, v. Peter R. Weiler, Ex'r, Impl'd, App'lt.
    
      (Supreme Court, General Term. First Department,
    
    
      Filed March 17, 1893.)
    
    1. Witness—Competency—Transactions with decedent.
    In an action to recover a de‘)t clue an estate, a legatee who took a life interest m the estate, but has released all her interest in the moneys involved m the action, though not her interest in the rest of the estate, is competent to testify. r
    8. Same—Attorneys.
    The fact that an attorney was employed by a testator to draw certain papers does not make his declarations in respect to testator’s property admissible in evidence against testator’s estate.
    
      3. Guardians—Deposit—Settlement with ward.
    A guardian deposited money in a savings’ Lank to his credit as guardian. Thereafter he purchased certain bonds for a price greater than the deposit, and delivered them, to his ward with a statement that they were purchased with the proceeds of the deposit, and so accepted by the ward. The deposit remained in the hank until the guardian’s death. Held, that the money so deposited belonged to the guardian's estate.
    Appeal from an order bringing in additional parties to the action, and the findings of the court of law that the plaintiffs wei-e entitled to the moneys so on deposit with the Citizens’ Savings Bank as belonging to the estate of Peter T. O’Brien, and should be paid over to them upon the surrender of the plaintiffs’ book containing the account.
    The following is the opinion at special term:
    Ingraham, J. “It appears in this case that Peter T. O’Brien, the plaintiffs’ testator, opened an account on January 3, 1871, in the Citizens’ Bank, by depositing $2,500. The account was opened in the name of Peter T. O’Brien as guardian for Elizabeth O’Brien, which appears to have been subsequently changed to the full name of his daughter, who was the beneficiary, viz.: Sarah E. O’Brien. Under the authorities in this state such a deposit was, undoubtedly, a declaration of trust, whereby Peter T. O’Brien became trustee for his daughter for the sum deposited, and such a deposit was a valid gift, which vested the title in himself as such guardian or trustee; and upon his death, or upon his daughter’s arriving at the age of twenty-one, she would be entitled to the money so deposited, and all subsequent deposits in the same account, whether interest or new deposits, also vested in plaintiffs’ testator as the guardian or trustee for his daughter, and became her property. This principle is firmly established in this state, and it is not necessary to cite authorities to sustain it. The sole question in this case is whether or not the plaintiffs’ testator accounted to his daughter for the amount that he held as her guardian or trustee. A consideration of the testimony, I think, establishes that the plaintiff has made out, by a preponderance of evidence, that there was such an accounting, and an investment of the amount so deposited, and which was on deposit in the bank, in the Second Avenue Railroad Company bonds, and that they were delivered to his daughter. It appears that in January, 1881, plaintiffs’ testator purchased three $1,000 Second Avenue Railroad bonds, for which he paid over $3,200, and that said bonds were delivered to his daughter with a statement that they were the proceeds of the money in the savings bank.
    That fact is proved by the testimony of the plaintiffs’ testator’s widow, and so far as she testified to conversations between her husband and her daughter, in which the witness took no part, I think that the testimony is competent. Her testimony proves that it was the sum of money deposited in the savings bank that plaintiffs’ testator had assumed to invest in the bonds, and that the bonds were delivered to and accepted by his daughter. By the deposit of the money in the savings bank plaintiffs’ testator never surrendered control over the money. It was in his possession as guardian or trustee for his daughter, and as such guardian or trustee he retained the evidence of the indebtedness of the savings bank for the money. That that. act was not inconsistent with the intention to give the money to the daughter is well settled, but on its appearing that that money still in his possession and under his control had been invested by him in securities that had been delivered to the beneficiary as all the money in the savings bank to her credit, and she accepted them as such, his obligation to her was at an end, and the money, although standing in his-name as trustee or guardian, was his own. There was-a question reserved as to some declarations of the daughter made to the plaintiff’s testator’s widow. On consideration, I have come to the conclusion that the widow is not competent to testify as to such declarations as were made indirectly to him as against the defendant who is the daughter’s administrator, and consequently must be stricken out. I think, therefore, plaintiff is entitled to judgment, but under the circumstances, without costs.
    
      John D. Townsend, for app'lt; James F. Malcolm (Abram Kling, of counsel), for resp't.
   Van Brunt, P. J.

We might very well rest our decision in the affirmance of the judgment in this case upon the opinion of the court below, but as certain exceptions to the admission of evidence have been taken, it will be necessary to notice these in the disposition of this appeal. It is claimed that it was error to permit the widow of the testator to testify to conversations between her husband and the deceased daughter regarding the ownership of the property which is the subject of this action, it being claimed that under § 829 of the Code of Civil Procedure she was excluded from testifying. The widow was entitled, under the will of her husband, to the income of his estate, real and personal, during Iier life, and at her death her associate plaintiff succeeds to her interest.

It appeared, however, upon the trial that the witness, for the purpose of becoming such witness, had executed a release, whereby she released and discharged the estate of and from all interest or claim she might have to the moneys involved in this action, or the income thereof; and upon the introduction of such release the testimony of the witness was received. It is claimed that because the witness did not release all her interest in the estate, or which she might acquire under the will, therefore, she was not competent. It is undoubtedly true that a legatee or devisee under a will is incompetent to testify to personal transactions or communications with the deceased, preceding, attending or succeeding the execution of the will, in support of which proposition various authorities may be cited. But it is equally true that a party may become competent by releasing his interest in the subject-matter involved, and, therefore, when the witness released and discharged the estate of and from all interest or claim she might have in and to the moneys involved in this action she was no longer a party or person interested in the event of the action, and consequently did not come within the prohibition of § 829. All the cases cited by the learned counsel for the appellant in support of the claim that there must be a release of all interest under the will in order to enable a legatee or person interested in the will to become a competent witness as to personal transactions or communi-' cations between the witness and the testator, were those relating to the validity of the will itself, and consequently, without such a general release, interest still remained. Those cases, therefore, are entirely different from one in which it is simply sought to collect a debt due to the estate; and, as already observed, where the legatee under the will releases all his interest in or claim to such debt, or any income derivable therefrom, it is apparent that all interest in the event of the litigation has ceased, and the witness has become competent. The mere fact that such release swells the interest of other legatees does not in any way continue the interest of the witness who has released the same.

The claim that there was no evidence to sustain the finding of the court below to the effect that the testator advanced out of his own money the sum invested for the use of his daughter in the purchase of the Second Avenue Eailroad bonds, and that his daughter received the same as the equivalent of her money deposited in the bank, is certainly not well taken. The evidence of the widow was clearly to the effect that the daughter accepted the bonds purchased by her husband in lieu of the money deposited in the bank; and, even if the books of the bank showed that no money had been taken from the bank at the time, but that the interest continued to accumulate until the death of the testator, it was a substitution of the bonds for the money by and with the consent of the beneficiary.

The claim that it was error to permit the widow, and the mother of the deceased daughter, to testify to conversations she claimed to have had with her, not in the presence of the testator, in regard to the property which is the subject of this action, does not seem to have'any foundation. It is claimed that the release given and put in evidence was not applicable to the daughter, and, therefore, did not make her a competent witness. The question was not whether it was applicable to the daughter or not. The point was that by the giving of the release the widow had ceased to be interested in the event of the litigation, and, therefore, she was just as competent a witness as though she never had had any interest whatever in this particular money under the will of her husband.

The claim as to the right of proving the custom of the bank when they struck out the name of a party in a pass book was entirely immaterial. The witness was asked as to the facts, and he testified that the striking out of the name in the pass book he did not think had been done at the bank, and the defendant had the benefit of this evidence, and it seems to us that that was going as far as the rules of evidence could possibly justify. What this bank was accustomed to do under these particular circumstances clearly could not be evidence as against the deceased.

The only other objection was to the exclusion of certain evidence as to declarations made by an attorney who drew certain papers for the deceased shortly after the execution of those papers. It is true that in the question the witness was asked whether he did not have such conversation with the attorney as the representative of the deceased, and when the witness said that he did have such conversation he was asked what it was. This was objected to, and the objection sustained. But it is clear that an attorney who was employed by the testator to draw papers was not also employed by him for the purpose of making declarations in respect to his property. If it was claimed upon the part of the defendant that such declarations were competent, it certainly was their duty to first establish by evidence the fact that the attorney was authorized to make such declarations on behalf of his client before the court would be justified in entertaining for a moment the admission of such testimony.

Upon the whole case we are of opinion that no errors were committed, and that the judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.  